DCL 250 (R2017-01)
STANDARD CONSTRUCTION CONTRACT DOCUMENTS
Revision Date
No. of Pages
1 - Instructions to Tenderers – DCL193
R2016-02
11 pages
2 - General Conditions – DCL 32
R2012-03
63 pages
- Bid Bond
R2012-03
1 page
- Labour and Material Payment Bond
R2012-03
2 pages
- Performance Bond
R2012-03
2 pages
3 - Insurance Conditions – DCL 243
R2012-03
4 pages
4 - Insurer's Certificate of Insurance – DCL 232
R2012-03
1 page
5 - Request for Acceptance of Alternative Materials – DCL 242
R2015-11
2 pages
6 - Contactor Performance Evaluation Report Form (CPERF) – DCL 80
R2016-05
2 pages
7- Performance Evaluations Guidelines – DCL 81
R2016-05
2 pages
8 – DCC Procurement Code of Conduct
R2017-01
5 pages
Contracting with Government of Canada - Labour Conditions - Refer to the Human Resources and Social Development Canada website.
NOTE: These Standard Construction Contract Documents are included in the Tender Documents by REFERENCE ONLY.
DCL 193 (R2016-02)
INSTRUCTIONS TO TENDERERS Item
Heading
Page
1
TENDER DOCUMENTS ................................................................................................. 2
2
DCC PROCUREMENT CODE OF CONDUCT ............................................................... 2
3
COMPLETION OF TENDER .......................................................................................... 2
4
REVISIONS TO THE TENDER ...................................................................................... 3
5
BID SECURITY REQUIREMENTS ................................................................................. 3
6
LISTING OF SUBCONTRACTORS AND SUPPLIERS ................................................... 6
7
SUBMISSION OF TENDER ........................................................................................... 6
8
ACCEPTANCE OF TENDER ......................................................................................... 6
9
ALTERNATIVE MATERIALS & PRICES ........................................................................ 9
10
LANGUAGE OF THE CONTRACT ................................................................................. 9
11
STATUTORY HOLIDAYS ............................................................................................... 9
12
CONTRACT SECURITY................................................................................................10
13
TENDER RESULTS ......................................................................................................10
14
BID DEPOSITORY ........................................................................................................10
15
FEDERAL AND PROVINCIAL TAXES ..........................................................................10
16
INTERNATIONAL SANCTIONS ....................................................................................11
17
DISPUTE RESOLUTION PROTOCOL ..........................................................................11
Page 1 of 11
DCL 193 (R2016-02)
INSTRUCTIONS TO TENDERERS 1
2
3
TENDER DOCUMENTS 1.1
Tender Documents are available through MERX or as otherwise directed by Defence Construction Canada in the Invitation to Tender.
1.2
Federal Government Labour Conditions for construction are available electronically on the Labour Program website at: http://www.labour.gc.ca/eng/home.shtml
1.3
Standard Construction Contract Documents are incorporated by reference and are available through MERX at 1-800-964-MERX (6379) or electronically at: www.merx.com and from the Supplier Home follow the links: Government Resources and then Defence Construction Canada (DCC) or from Defence Construction Canada at: http://www.dcc-cdc.gc.ca/english/cc_procurement.html.
1.4
Tenderers are to obtain the specified Tender Documents as directed by Defence Construction Canada and tenders received from firms whose names do not appear on the official plan takers list may be declared invalid.
1.5
All inquiries regarding the tender are to be submitted in writing and only to the Contracting Authority named in the tender notice. Failure to comply with this provision may for this reason alone, result in disqualification of a tender. Inquiries received within five (5) business days prior to tender closing will not be answered. Inquiries that are of general interest and require modification(s) to the Tender Documents will be issued by amendment to all plan takers.
DCC PROCUREMENT CODE OF CONDUCT 2.1
Tenderers shall comply with the DCC Procurement Code of Conduct.
2.2
DCC will verify compliance with the DCC Procurement Code of Conduct, through independent research, the use of any government resources or by contacting third parties. Depending on the results of this verification, a Criminal Record Verification may be requested.
2.3
Tenderers shall, within 48 hours of receipt of a written request from DCC, provide to DCC the following: the names of owners, directors, officers, controlling shareholders as described in Section 3 of the DCC Procurement Code of Conduct, or a duly completed Consent for Criminal Record Verification (CCRV) form.
COMPLETION OF TENDER 3.1
The tender shall: 3.1.1 be submitted on the Tender Form provided specifically for this tender, or as otherwise directed by Defence Construction Canada; 3.1.2 be based on the Tender Documents listed on the Tender Form; 3.1.3 be signed by a duly authorized representative of the Tenderer; 3.1.4 be accompanied by: 3.1.4.1 bid security, if required, as specified in clause 5; and 3.1.4.2 any other document or documents specified elsewhere in the Tender Documents where it is stipulated that they are to accompany the tender.
3.2
Any alterations in the printed or pre-typed sections of the Tender Form, or any condition or qualification placed on or provided with the tender shall render the tender Page 2 of 11
DCL 193 (R2016-02)
INSTRUCTIONS TO TENDERERS invalid and be direct cause for disqualification. Subject to the provisions of 8.5, failure to provide the information requested in the Tender Documents may render the tender invalid. Alterations, corrections, changes or erasures made to statements or figures entered on the Tender Form by the Tenderer are to be initialled by the person or persons signing the tender. 3.3 4
5
Only the signed and duly completed Tender Form will be accepted as a valid tender.
REVISIONS TO THE TENDER 4.1
A tender submitted in accordance with these instructions may be revised by letter or facsimile provided the revision is received at the office designated for the receipt of tenders, on or before the date and time set for the closing of the solicitation. The letter or facsimile shall be on the Tenderer's letterhead or bear a signature that identifies the Tenderer.
4.2
A revision to a tender that includes unit prices must clearly identify the change(s) in the unit price(s) and the specific item(s) to which each change applies.
4.3
A letter or facsimile submitted to confirm an earlier revision shall be clearly identified as CONFIRMATION ONLY.
4.4
Failure to comply with any of the above provisions will result in the rejection of the noncompliant revision(s) only. The tender shall be evaluated based on the original tender submitted and all other compliant revision(s).
BID SECURITY REQUIREMENTS 5.1
Bid security is required when the advertised project budget is greater than $100,000.00 or, if the advertised project budget is less than $100,000.00 when specifically called for in the Tender Documents. Bid Security must be in the ORIGINAL form. Fax or photocopies are NOT acceptable. The Tenderer shall submit bid security with the tender in the form of a bid bond or a security deposit in an amount that is equal to not less than 10 percent of the bid amount. Applicable Taxes shall not be included when calculating the amount of any bid security that may be required. The maximum amount of bid security required with any bid is $2,000,000.
5.2
A bid bond shall be in an approved form as described in DCL 32 - General Conditions that form part of the Standard Construction Contract Documents available on the Defence Construction Canada website at http://www.dcccdc.gc.ca/english/cc_procurement.html. The Bid Bond must also be issued by an approved company whose bonds are acceptable to the Government of Canada or that is listed on the Treasury Board Secretariat’s website at http://www.tbssct.gc.ca/pol/doc-eng.aspx?id=14494§ion=text#appL
5.3
A security deposit shall be an original, properly completed, signed where required and be either 5.3.1 a bill of exchange, bank draft, certified cheque or money order made payable to the Receiver General for Canada and certified by an approved financial institution or drawn by an approved financial institution on itself; or 5.3.2 bonds of, or unconditionally guaranteed as to principal and interest by, the Government of Canada; or 5.3.3 an irrevocable standby letter of credit. Page 3 of 11
DCL 193 (R2016-02)
INSTRUCTIONS TO TENDERERS 5.4
For the purposes of paragraph 5.3.1 5.4.1 a bill of exchange is an unconditional order in writing signed by the Bidder and addressed to an approved financial institution, requiring the said institution to pay, on demand, at a fixed or determinable future time a sum certain of money to, or to the order of, the Receiver General for Canada; 5.4.2 if a bill of exchange, bank draft, certified cheque or money order is certified by or drawn on an institution or corporation other than a chartered bank, it must be accompanied by proof that the said institution or corporation meets at least one of the criteria described in subparagraph 5.4.3, either by letter or by a stamped certification on the bill of exchange, bank draft, certified cheque or money order; and 5.4.3 An approved financial institution is 5.4.3.1 a corporation or institution that is a member of the Canadian Payments Association as defined in the Canadian Payments Act; 5.4.3.2 a corporation that accepts deposits that are insured, to the maximum permitted by law, by the Canada Deposit Insurance Corporation or the "Autorité des marchés financiers"; 5.4.3.3 a corporation that accepts deposits from the public if repayment of the deposit is guaranteed by Her Majesty the Queen in right of a province; 5.4.3.4 a corporation, association or federation incorporated or organized as a credit union or co-operative credit society that conforms to the requirements of a credit union which are more particularly described in paragraph 137(6) of the Income Tax Act; or 5.4.3.5 Canada Post Corporation.
5.5
Bonds referred to in paragraph 5.3 shall be provided on the basis of their market value current at the date of tender closing, and shall be 5.5.1 payable to bearer; 5.5.2 accompanied by a duly executed instrument of transfer of the bonds to the Receiver General for Canada in the form prescribed by the Domestic Bonds of Canada Regulations; or 5.5.3 registered as to principal or as to principal and interest in the name of the Receiver General for Canada pursuant to the Domestic Bonds of Canada Regulations.
5.6
An irrevocable standby letter of credit referred to in paragraph 5.3.3 shall 5.6.1 be an arrangement, however named or described, whereby a financial institution acting at the request and on the instructions of a customer or on its own behalf, 5.6.1.1 is to make a payment to, or to the order of, the Receiver General for Canada as the beneficiary; 5.6.1.2 is to accept and pay bills of exchange drawn by the Receiver General for Canada; 5.6.1.3 authorizes another financial institution to effect such payment or accept and pay such bills of exchange; or
Page 4 of 11
DCL 193 (R2016-02)
INSTRUCTIONS TO TENDERERS 5.6.1.4
5.6.2 5.6.3 5.6.4
5.6.5 5.6.6 5.6.7
5.6.8
authorizes another financial institution to negotiate against written demand(s) for payment provided that the terms and conditions of the letter of credit are complied with; state the face amount which may be drawn against it; state its expiry date; provide for sight payment to the Receiver General for Canada by way of the financial institution’s draft against presentation of a written demand for payment signed by the Departmental Representative identified in the letter of credit by his/her office; provide that more than one written demand for payment may be presented subject to the sum of those demands not exceeding the face value of the letter of credit; provide that it is subject to the International Chamber of Commerce (ICC) Uniform Customs and Practice for Documentary Credits, 2007 Revision, ICC Publication No.600; clearly specify that it is irrevocable or deemed to be irrevocable pursuant to article 6 c) of the International Chamber of Commerce (ICC) Uniform Customs and Practice for Documentary Credits, 2007 revision, ICC Publication No.600; and be issued or confirmed, in either official language, by a financial institution which is a member of the Canadian Payments Association and is on the letterhead of the issuer or confirmer. The format is left to the discretion of the issuer or confirmer.
5.7
If the tender is accepted: 5.7.1 Bid security in the form of a bill of exchange, bank draft, certified cheque, money order or Government of Canada Bonds, as prescribed in paragraph 5.3.1 or 5.3.2 shall be applied to and form part of the contract security. Contract security must be provided by the successful Tenderer pursuant to GC9 of DCL 32 – General Conditions, and that part of the bid security that exceeds the amount required for contract security shall be returned to the Tenderer. 5.7.2 Bid security in the form of a bid bond will be returned to the Tenderer, only upon request, and only if contract security pursuant to GC9 of DCL 32 – General Conditions is provided. 5.7.3 Bid security submitted in the form of an irrevocable standby letter of credit will be returned to the Tenderer, only upon request, and only if contract security GC9 of DCL 32 – General Conditions is provided.
5.8
If the tender is not accepted: 5.8.1 Bid security in the form prescribed in paragraph 5.3.1 shall be returned to the Tenderer. 5.8.2 Bid security in the form of a bid bond or irrevocable standby letter of credit will be returned to all Tenderers only upon request.
Page 5 of 11
DCL 193 (R2016-02)
INSTRUCTIONS TO TENDERERS 6
7
8
LISTING OF SUBCONTRACTORS AND SUPPLIERS 6.1
Notwithstanding any list of subcontractors which the Tenderer may be required to submit as part of the tender, the Tenderer shall, within 48 hours of receipt of a written request from Defence Construction Canada, submit the names of subcontractors and suppliers for the part or parts of the work listed in the said request. Failure to do so may result in disqualification of its tender.
6.2
No subcontractor who holds a restricted license under the Quebec Building Act (RSQ, c B-1.1) can be included by the Tenderer in its list of subcontractors mentioned in paragraph 6.1 above and selected for execution of work failing which the Tenderer must submit a revised list.
SUBMISSION OF TENDER 7.1
The tender, duly signed and completed, is to be enclosed in an envelope, and addressed and submitted to the office designated for the receipt of tenders.
7.2
The Tenderer is to ensure the tender is clearly identified by including the following information on the face of the tender envelope: 7.2.1 solicitation or project number; 7.2.2 name of the Tenderer; 7.2.3 closing date and time; and 7.2.4 closing location.
7.3
Tenderers intending to have their tender hand delivered to the Tender Closing Office are advised to allow sufficient time for their carrier to clear building security.
7.4
Tenders must be received at the Tender Closing Office stipulated on the Tender Form, on or before the specified tender closing date and time, as determined by the Tender Closing Office clock. TENDERS RECEIVED AFTER THIS DATE AND TIME SHALL NOT BE CONSIDERED, REGARDLESS OF ANY REASON FOR THEIR LATE ARRIVAL.
ACCEPTANCE OF TENDER 8.1
It is our intent to award this contract to the Tenderer that submits the lowest compliant tender however, Defence Construction Canada may accept any tender, whether it is the lowest or not, or may reject any or all tenders.
8.2
Without limiting the generality of paragraph 8.1, Defence Construction Canada may reject a tender if: 8.2.1 the information contained in the certification contemplated in the tender form regarding the DCC Procurement Code of Conduct is determined to be untrue in any respect by DCC; or 8.2.2 a Tenderer has been declared ineligible or has been suspended as determined by the Minister of Public Services and Procurement under the Ineligibility and Suspension Policy and the period of ineligibility or suspension has not expired; or 8.2.3 the Tenderer has failed to comply with the provisions of Section 2 of these instructions; or
Page 6 of 11
DCL 193 (R2016-02)
INSTRUCTIONS TO TENDERERS 8.2.4 8.2.5
the bidding privileges of the Tenderer or subcontractor included as part of the tender are suspended or are in the process of being suspended; or with respect to current or prior transactions with Defence Construction Canada 8.2.5.1 the Tenderer is bankrupt or if, for whatever reason, its activities are rendered inoperable for an extended period; or 8.2.5.2 Defence Construction Canada has exercised, or intends to exercise, the contractual remedy of taking the work out of the contractor’s hands with respect to a contract with the Tenderer, any of its employees or any subcontractor included as part of its tender; or 8.2.5.3 Defence Construction Canada determines that the Tenderer's performance on other contracts is sufficiently poor to jeopardize the successful completion of the requirement being bid on.
8.3
In assessing the Tenderer’s performance on other contracts pursuant to paragraph 8.2.5.3, Defence Construction Canada may consider, but not be limited to, such matters as: 8.3.1 the quality of workmanship in performing the Work; 8.3.2 the timeliness of completion of the Work; 8.3.3 the overall management of the Work and its effect on the level of effort demanded of the Corporation and its representatives; and 8.3.4 the completeness and effectiveness of the Contractor’s safety program during the performance of the Work.
8.4
Without limiting the generality of paragraphs 8.1, 8.2 and 8.3, Defence Construction Canada may reject any tender based on an unfavourable assessment of the: 8.4.1 adequacy of the tendered price to permit the work to be carried out and, in case of a tender providing unit prices or a combination of lump sum and unit prices, whether each such price reasonably reflects the cost of performing the part of the work to which that price applies; or 8.4.2 Tenderer’s ability to provide the necessary management structure, skilled personnel, experience and equipment to perform competently the work under the contract; or 8.4.3 Tenderer’s performance on other contracts.
8.5
Defence Construction Canada may, at its sole discretion, waive or cause to be corrected minor irregularities in tenders if Defence Construction Canada determines at its sole discretion that the variation of the tender from the exact requirements set out in the Tender Documents can be corrected or waived without being prejudicial to other Tenderers.
8.6
Defence Construction Canada reserves the right, at its sole discretion, to negotiate or invite new tenders, in cases where the lowest acceptable tender exceeds the advertised budget amount. Negotiations or the invitation of new tenders will be conducted as follows: 8.6.1 In the event that the lowest compliant tender exceeds the amount of funding Canada has allocated for the construction phase of the work 8.6.1.1 by 15% or less, Canada, at its sole discretion, shall either
Page 7 of 11
DCL 193 (R2016-02)
INSTRUCTIONS TO TENDERERS
8.6.2 8.6.3
8.6.1.1.1 cancel the tender call; 8.6.1.1.2 obtain additional funding and, subject to the provisions of clause 8 of the Instructions to Tenderers, award the Contract to the Tenderer submitting the lowest compliant tender; or 8.6.1.1.3 revise the scope of the work accordingly and negotiate, with the Tenderer submitting the lowest compliant tender, a corresponding reduction in its tendered price. 8.6.1.2 by more than 15%, Canada, at its sole discretion, shall either 8.6.1.2.1 cancel the tender call; 8.6.1.2.2 obtain additional funding and, subject to the provisions of clause 8 of the Instructions to Tenderers, award the Contract to the Tenderer submitting the lowest compliant tender; or 8.6.1.2.3 revise the scope of the work accordingly and invite those who submitted compliant tenders at the original tender call to re-tender the work. If negotiations or re-tender are undertaken as is contemplated in 8.6.1.1.3 or 8.6.1.2.3, Tenderers shall retain the same subcontractors and suppliers as they carried in their original tender submissions. If Canada elects to negotiate a reduction in the tendered price as is contemplated in 8.6.1.1.3 and the negotiations fail to reach an agreement, Canada shall then exercise either of the options referred to in 8.6.1.1.1 or 8.6.1.1.2.
8.7
The tender validity period may be extended for a specific period of time, but only upon written request by Defence Construction Canada and only upon agreement of the Tenderer. DCC reserves the right, at its sole discretion, to enter into or terminate negotiations for any adjustments in tender price or completion date if circumstances warrant such an action.
8.8
For the purpose of clauses 8.2, 8.3 and 8.4 above the Tenderer also means person or persons holding controlling interest in the corporation, partnership or sole proprietorship.
8.9
Conflict of Interest – Unfair Advantage 8.9.1 In order to protect the integrity of the procurement process, Tenderers are advised that Defence Construction Canada may reject a tender in the following circumstances: 8.9.1.1 If the Tenderer, any of its subcontractors, and of their respective employees or former employees was involved in any manner in the preparation of the bid solicitation; 8.9.1.2 If the Tenderer, any of its subcontractors, and of their respective employees or former employees had access to information related to the bid solicitation that was not available to other tenderers and that would, in Defence Construction Canada’s opinion, give the Tenderer an unfair advantage.
Page 8 of 11
DCL 193 (R2016-02)
INSTRUCTIONS TO TENDERERS 8.9.2
8.9.3
8.9.4
9
The experience acquired by a Tenderer who is providing or has provided the services described in the bid solicitation (or similar services) will not, in itself, be considered by Defence Construction Canada as conferring an unfair advantage or creating a conflict of interest. The Tenderer remains however subject to the criteria established above. Firms that have been engaged, on behalf of the Owner, to perform consulting, design, estimating or construction phase services related to the work of this Project will be prohibited from either directly or indirectly submitting or participating in the preparation of a bid for this and any subsequent construction contracts related to this Project. Tenderers who are in doubt about a particular situation should contact the Contracting Authority before tender closing. By submitting a tender, the Tenderer represents that it does not consider itself to be in a conflict of interest not to have an unfair advantage. The Tenderer acknowledges that it is within Defence Construction Canada’s sole discretion to determine whether a conflict of interest or unfair advantage exists.
ALTERNATIVE MATERIALS & PRICES 9.1
Whenever a material is specified by trade name or by manufacturer’s name, the tender shall be based on the use of the named material or on the use of an alternative material which has been accepted, pursuant to a request that has been submitted in accordance with the requirements of the Request for Acceptance of Alternative Materials, DCL 242. During the tender period, alternative materials will be considered provided full technical data is received in writing by the Contracting Authority named in the MERX ad at least ten (10) working days prior to the tender closing date. If any alternative material is approved for the purpose of the tender, an Amendment to the Tender Documents will be issued by Defence Construction Canada.
9.2
Tenderers are not to submit alternative prices for the work or part of the work, except when specifically called for in the Tender Documents.
10 LANGUAGE OF THE CONTRACT 10.1 When Tender Documents are available in both official languages, the language of the accepted Tender Form shall be the language of the resulting contract. 11 STATUTORY HOLIDAYS 11.1 Work is not permitted on Statutory Holidays unless there is emergency work required or there are extraordinary circumstances. In those cases, approval of the DCC Representative is required to work on Statutory Holidays. 11.2 The following Statutory Holidays are included: 11.2.1 New Year’s Day – January 1 11.2.2 Good Friday 11.2.3 Easter Monday 11.2.4 Victoria Day – First Monday preceding May 25 11.2.5 Quebec National Holiday – June 24 (Province of Quebec only) 11.2.6 Canada Day – July 1 11.2.7 Statutory holiday – First Monday of August (Except Quebec)
Page 9 of 11
DCL 193 (R2016-02)
INSTRUCTIONS TO TENDERERS 11.2.8 11.2.9 11.2.10 11.2.11 11.2.12
Labour Day – First Monday in September Thanksgiving Day – Second Monday in October Remembrance Day – November 11 Christmas Day – December 25 Boxing Day – December 26
12 CONTRACT SECURITY 12.1 Contract security is required when the advertised project budget is greater than $100,000.00 or, if the advertised project budget is less than $100,000.00 when specifically called for in the Tender Documents. Contract security shall be submitted in accordance with the DCL 32 - General Conditions. 13 TENDER RESULTS 13.1 Tender award results may be obtained on the Defence Construction Canada website at http://www.dcc-cdc.gc.ca/english/cc_contracts.html. 14 BID DEPOSITORY 14.1 When called for by the Tender Documents, Tenderers shall obtain tenders for the work specified through the Bid Depository according to local rules and trade definitions. 15 FEDERAL AND PROVINCIAL TAXES 15.1 The tender amount shall include all applicable federal, provincial and municipal taxes with exception of the following, when applicable: 15.1.1
Goods and Services Tax / Harmonized Sales Tax / Quebec Sales Tax Tenderers are not to include any amounts for the Goods and Services Tax (GST), Quebec Sales Tax (QST) or Harmonized Sales Tax (HST), whichever is applicable, and the GST / QST / HST shall not be included when calculating the amount of any tender security or contract security that may be required. Any amount levied in respect of the GST / QST / HST will be billed as a separate item in a progress claim submitted by the Contractor, and will be paid to the Contractor in addition to the amount approved by the DCC Representative for work performed under the Contract. The Contractor will be required to remit the appropriate amount to Canada Revenue Agency or Revenu Quebec in accordance with the applicable legislation.
15.1.2
Manitoba Sales Tax. Tenderers are advised that Defence Construction Canada (DCC) purchases construction services as an agent of the Department of National Defence and is therefore eligible to receive any exemption from the payment of Retail Sales Tax (RST) on the sale of Tangible Personal Property (TPP), as defined by the Retail Sales Act of the Province of Manitoba, to which Her Majesty the Queen in Right of Canada is entitled pursuant to the terms of the Reciprocal Taxation Agreement between Canada and Manitoba. Tenderers should familiarize themselves with all relevant legislation and regulation, particularly as they apply to mechanical and electrical contracts, and consider all applicable exemptions in their tender price. For applicable exemptions, the
Page 10 of 11
DCL 193 (R2016-02)
INSTRUCTIONS TO TENDERERS successful contractor will be provided with an RST number to be recorded on progress billing documents. 15.1.3
British Columbia Provincial Sales Tax Tenderers are advised that DCC acquires construction services as an agent of the Department of National Defense (DND), which is exempt from British Columbia Provincial Sales Tax (PST) on the purchase of any tangible personal property (TPP) sold to the DND under the terms of the Contract. DCC will provide the DND’s PST number to support that exemption. Tenderers are further advised that they are exempt from PST on any TPP they supply and install as affixed machinery or improvements to real property under the terms of the Contract. Form FIN491 is used in supporting the exemption. Tenderers are further advised that any subcontractors they engage are exempt from PST on any TPP the subcontractors supply and install as affixed machinery or improvements to real property under the terms of their subcontract with the Tenderer. The Tenderer should provide any such subcontractors a copy of the form FIN491 for use by the subcontractor in supporting that exemption (together with a form FIN493 prepared by the subcontractor). Tenderers should familiarize themselves with the Provincial Sales Tax Act (British Columbia) and the regulations thereto, particularly as they relate to contractors (Division 8 of Part 3 of that act).
16 INTERNATIONAL SANCTIONS 16.1 Tenderers must ensure that no goods or services that originate, either directly or indirectly, from the countries subject to economic sanctions imposed by Canada, are included in their tender. Details on existing sanctions can be found on the Foreign Affairs, Trade and Development Canada web site. 17 DISPUTE RESOLUTION PROTOCOL 17.1 Defence Construction Canada recognizes the importance of considering the entire continuum of resolution resources to prevent or to settle contractual disputes. Defence Construction Canada is a leader in the application of a “partnering” process to design and construction contracts. “Partnering” encompasses an attitude recognizing that all the players in a project have common goals that can be achieved through cooperation and open communications. Moreover it includes a structured management process to help develop and sustain collaborative teamwork among individuals from different organizations, and guidelines for resolving disputes in a timely and effective manner. Further information on “partnering” is available on request. 17.2 Not even the best of intentions will eliminate all disputes in a system based on the interpretation of documents and competitive, public tendering. DCC will consider all alternative dispute resolution mechanisms that are appropriate to a situation, including facilitated negotiation, mediation, non-binding and binding arbitration, before proceeding to litigation. DCC has successfully used all of these methods in the past. 17.3 Nothing in this protocol in any way restricts Tenderers or the Corporation from resorting to litigation. In some cases it is the only acceptable option however it is the least preferred choice. The Corporation encourages all contractors to take into account this approach to doing business when entering into a contract with the Corporation. Page 11 of 11
DCL 32 (R2012-03)
GENERAL CONDITIONS GC1 – GENERAL PROVISIONS ............................................................................................. 4 1.1 1.2 1.3 1.4 1.5 1.6 1.7 1.8 1.9 1.10 1.11 1.12 1.13 1.14 1.15 1.16 1.17 1.18 1.19
Interpretation ............................................................................................................... 4 Contract Documents .................................................................................................... 6 Status of the Contractor ............................................................................................... 8 Rights and Remedies .................................................................................................. 8 Time of the Essence .................................................................................................... 9 Indemnification by the Contractor ................................................................................ 9 Indemnification by Canada .......................................................................................... 9 Laws, Permits and Taxes ...........................................................................................10 Workers’ Compensation .............................................................................................11 National Security ........................................................................................................11 Unsuitable Workers ....................................................................................................11 Public Ceremonies and Signs .....................................................................................12 Conflict of Interest.......................................................................................................12 Agreements and Amendments ...................................................................................12 Succession .................................................................................................................12 Assignment.................................................................................................................12 No Bribe .....................................................................................................................12 Certification – Contingency Fees ................................................................................13 International Sanctions ...............................................................................................13
GC2 – ADMINISTRATION OF THE CONTRACT ...................................................................14 2.1 2.2 2.3 2.4 2.5 2.6 2.7 2.8
DCC Representative's Authority .................................................................................14 Interpretation of Contract ............................................................................................14 Notices .......................................................................................................................15 Site Meetings ..............................................................................................................15 Review and Inspection of Work ..................................................................................15 Superintendent ...........................................................................................................16 Non-discrimination in Hiring and Employment of Labour.............................................17 Accounts and Audits ...................................................................................................18
GC3 – EXECUTION AND CONTROL OF THE WORK ...........................................................19 3.1 3.2 3.3 3.4 3.5 3.6 3.7
Progress Schedule .....................................................................................................19 Errors and Omissions .................................................................................................19 Construction Safety ....................................................................................................19 Execution of the Work.................................................................................................20 Material ......................................................................................................................21 Subcontracting ...........................................................................................................21 Construction by Other Contractors or Workers ...........................................................22 1 of 63
DCL 32 (R2012-03)
GENERAL CONDITIONS 3.8 3.9 3.10 3.11 3.12 3.13
Labour and Fair Wages ..............................................................................................23 Truck Haulage Rates ..................................................................................................23 Material, Plant and Real Property Become Property of Canada..................................23 Defective Work ...........................................................................................................24 Clean-up of Site ..........................................................................................................24 Warranty and Rectification of Defects in Work ............................................................24
GC4 – PROTECTIVE MEASURES .........................................................................................25 4.1 4.2 4.3 4.4
Protection of Work and Property .................................................................................25 Precautions Against Damage, Infringement of Rights, Fire and Other Hazards ..........25 Material, Plant and Real Property Supplied by Canada ..............................................26 Contaminated Site Conditions ....................................................................................27
GC5 – TERMS OF PAYMENT ................................................................................................27 5.1 5.2 5.3 5.4 5.5 5.6 5.7 5.8 5.9 5.10 5.11 5.12 5.13
Interpretation ..............................................................................................................27 Amount Payable .........................................................................................................28 Increased or Decreased Costs ...................................................................................29 Progress Payment ......................................................................................................29 Substantial Completion of the Work ............................................................................30 Final Completion.........................................................................................................31 Payment Not Binding on Canada ................................................................................32 Claims and Obligations ...............................................................................................32 Right of Setoff .............................................................................................................34 Assessments and Damages for Late Completion .......................................................34 Delay in Making Payment ...........................................................................................35 Interest on Settled Claims ...........................................................................................35 Return of Security Deposit ..........................................................................................35
GC6 – DELAYS AND CHANGES IN THE WORK ..................................................................36 6.1 6.2 6.3 6.4 6.5
Changes in the Work ..................................................................................................36 Changes in Subsurface Conditions .............................................................................36 Human Remains, Archaeological Remains and Items of Historical or Scientific Interest ...................................................................................................................................37 Determination of Price ................................................................................................38 Delays and Extension of Time ....................................................................................41
GC7 – DEFAULT, SUSPENSION OR TERMINATION OF CONTRACT ................................42 7.1 7.2 7.3 7.4
Taking the Work out of the Contractor's Hands...........................................................42 Suspension of Work ...................................................................................................43 Termination of Contract ..............................................................................................44 Security Deposit – Forfeiture or Return.......................................................................44 2 of 63
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GENERAL CONDITIONS GC8 – DISPUTE RESOLUTION .............................................................................................45 8.1 8.2 8.3 8.4 8.5 8.6 8.7 8.8 8.9 8.10 8.11
Interpretation ..............................................................................................................45 Consultation and Co-operation ...................................................................................45 Notice of Dispute ........................................................................................................45 Negotiation .................................................................................................................46 Mediation ....................................................................................................................47 Binding Arbitration ......................................................................................................47 Disputes not Subject to Arbitration ..............................................................................48 Confidentiality .............................................................................................................49 Settlement ..................................................................................................................49 Rules for Mediation of Disputes ..................................................................................49 Rules for Arbitration of Disputes .................................................................................53
GC9 – CONTRACT SECURITY ..............................................................................................59 9.1 9.2
Obligation to Provide Contract Security ......................................................................59 Types and Amounts of Contract Security ....................................................................59
GC10 – INSURANCE ...............................................................................................................61 10.1 Insurance Contracts ...................................................................................................61 10.2 Insurance Proceeds ....................................................................................................62
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GENERAL CONDITIONS GC1 – GENERAL PROVISIONS 1.1
Interpretation 1.1.1
Headings and References .1 The headings in the Contract documents, other than those in the drawings and specifications, form no part of the Contract but are inserted for convenience of reference only. .2 A reference made to a part of the Contract by means of numbers preceded by letters is a reference to the particular part of the Contract that is identified by that combination of letters and numbers and to any other part of the Contract referred to therein. .3 A reference to a paragraph or subparagraph followed by an identifying number, letter or combination thereof is, unless specifically stated otherwise, a reference to the paragraph or subparagraph that forms part of the clause within which the reference is made.
1.1.2
Terminology In the Contract, .1 "Canada", "Crown", "Her Majesty" means Her Majesty the Queen in right of Canada as represented by Defence Construction Canada (DCC); .2 "Contract" means the contract documents referred to as such therein and every other document specified or referred to in any of them as forming part of the Contract, all as amended by agreement of the parties; .3 "Contract Amount" means the amount set out in the Contract to be payable to the Contractor for the Work, subject to the terms and conditions of the Contract; .4 "Contract Security" means any security given by the Contractor to Canada in accordance with the Contract; .5 "Contractor" means the person contracting with DCC to provide or furnish all labour, Material and Plant for the execution of the Work under the Contract, and includes the Contractor's Superintendent as designated in writing to the DCC Representative; .6 "DCC Representative" means the person designated in the Contract, or by written notice to the Contractor, to act as the DCC Representative for the purposes of the Contract, and includes a person, designated and authorized in writing by the DCC Representative to the Contractor; .7 "Final Certificate of Completion" means a certificate issued by the DCC Representative when the Work reaches Completion; .8 "herein", "hereby", "hereof", "hereunder" and similar expressions refer to the Contract as a whole and not to any particular section or part thereof;
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GENERAL CONDITIONS .9 "Interim Certificate of Completion" means a certificate issued by the DCC Representative when the Work reaches Substantial Completion; .10 "Lump Sum Arrangement" means that part of the Contract that prescribes a lump sum as payment for performance of the Work to which it relates; .11 "Material" includes all commodities, articles, machinery, equipment, fixtures and things required to be furnished in accordance with the Contract for incorporation into the Work; .12 "person" also includes, unless there is an express stipulation in the Contract to the contrary, any partnership, proprietorship, firm, joint venture, consortium or corporation; .13 "Plant" includes all tools, implements, machinery, vehicles, structures, equipment, articles and things that are necessary for the performance of the Contract, other than Material and those tools customarily provided by a tradesperson in practicing a trade; .14 "Quantities Adjustment Sheet” is issued by the DCC Representative certifying the correctness of the final quantities, prices per unit and values of labour, Plant and Material performed, used and supplied by the Contractor for the construction of the part of the Work to which a Unit Price Arrangement applies; .15 "Subcontractor" means a person having a direct contract with the Contractor, subject to GC3.6 "Subcontracting", to perform a part or parts of the Work, or to supply Material customized for the Work; .16 "Superintendent" means the employee or representative of the Contractor designated by the Contractor to act pursuant to GC2.6, "Superintendent"; .17 “Supplementary Conditions” means the part of the Contract that amends or supplements the General Conditions; .18 "Supplier" means a person having a direct contract with the Contractor to supply Plant or Material not customized for the Work; .19 "Unit Price Arrangement" means that part of the Contract that prescribes the product of a price per unit of measurement multiplied by a number of units of measurement for performance of the Work to which it relates; .20 "Unit Price Table" means the table of prices per unit set out in the Contract; .21 "Work" means, subject only to any express stipulation in the Contract to the contrary, everything that is necessary to be done, furnished or delivered by the Contractor to perform the Contract in accordance with the contract documents; and .22 "Working Day" means a day other than a Saturday, Sunday, or a statutory holiday that is observed by the construction industry in the area of the place of the Work. 1.1.3
Application of Certain Provisions
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GENERAL CONDITIONS .1 Any provisions of the Contract that are expressly stipulated to be applicable only to a Unit Price Arrangement are not applicable to any part of the Work to which a Lump Sum Arrangement applies. .2 Any provisions of the Contract that are expressly stipulated to be applicable only to a Lump Sum Arrangement are not applicable to any part of the Work to which a Unit Price Arrangement applies 1.1.4
Substantial Completion .1 The Work shall be considered to have reached Substantial Completion when .1 the Work or a substantial part thereof has passed inspection and testing and is, in the opinion of the DCC Representative, ready for use by Canada or is being used for the intended purposes; and .2 the Work is, in the opinion of the DCC Representative, capable of completion or correction at a cost of not more than .1 3% of the first $500,000; .2 2% of the next $500,000; and .3 1% of the balance of the Contract Amount at the time this cost is calculated. .2 Where the Work or a substantial part thereof is ready for use or is being used for the purposes intended and .1 the remainder of the Work or a part thereof cannot be completed by the time specified in the Contract, or as amended in accordance with GC6.5, "Delays and Extension of Time", for reasons beyond the control of the Contractor; or .2 the DCC Representative and the Contractor agree not to complete a part of the Work within the specified time; the cost of that part of the Work that was either beyond the control of the Contractor to complete or the DCC Representative and the Contractor have agreed not to complete by the time specified, shall be deducted from the value of the Contract referred to in paragraph 1.1.4.1.2 of GC1.1.4 and the said cost shall not form part of the cost of the Work remaining to be done in determining Substantial Completion.
1.1.5
Completion .1 The Work shall be deemed to have reached Completion when all labour, Plant and Material required have been performed, used or supplied, and the Contractor has complied with the Contract and all orders and directions made pursuant thereto, all to the satisfaction of the DCC Representative.
1.2
Contract Documents 1.2.1
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GENERAL CONDITIONS .1 The Contract documents are complementary, and what is required by any one shall be as binding as if required by all. .2 References in the Contract documents to the singular shall be considered to include the plural as the context requires. .3 Nothing contained in the Contract documents shall create a contractual relationship between DCC and any Subcontractor or Supplier, their subcontractors or suppliers, or their agents or employees. 1.2.2
Order of Precedence .1 In the event of any discrepancy or conflict in the contents of the following documents, such documents shall take precedence and govern in the following order: .1 any amendment or variation of the Contract documents that is made in accordance with the General Conditions; .2 any addenda issued prior to tender closing; .3 Supplementary Conditions; .4 General Conditions; .5 the duly completed Tender Form when accepted; .6 Plans and Specifications. later dates shall govern within each of the above categories of documents. .2 In the event of any discrepancy or conflict in the information contained in the Plans and Specifications, the following rules shall apply: .1 Specifications shall govern over Plans; .2 dimensions shown in figures on a Plan shall govern where they differ from dimensions scaled from the same Plan; and .3 Plans of larger scale govern over those of smaller scale.
1.2.3
Security and Protection of Documents and Work .1 The Contractor shall guard and protect Contract documents, drawings, information, models and copies thereof, whether supplied by Canada or the Contractor, against loss or damage from any cause. .2 The Contractor shall keep confidential all information provided to the Contractor by or on behalf of Canada in connection with the Work, and all information developed by the Contractor as part of the Work, and shall not disclose any such information to any person without the written permission of the DCC Representative, except that the Contractor may disclose to a Subcontractor, authorized in accordance with the Contract, information necessary to the performance of a subcontract. This section does not apply to any information that .1 is publicly available from a source other than the Contractor; or 7 of 63
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GENERAL CONDITIONS .2 is or becomes known to the Contractor from a source other than Canada, except any source that is known to the Contractor to be under an obligation to Canada not to disclose the information. .3 When the Contract, the Work, or any information referred to in paragraph 1.2.3.2 is identified as TOP SECRET, SECRET, CONFIDENTIAL or PROTECTED by Canada, the Contractor shall, at all times, take all measures reasonably necessary for the safeguarding of the Material so identified, including such measures as may be further specified elsewhere in the Contract or provided, in writing, from time to time by the DCC Representative. .4 Without limiting the generality of paragraphs 1.2.3.2 and 1.2.3.3 of GC1.2.3, when the Contract, the Work, or any information referred to in paragraph 1.2.3.2 is identified as TOP SECRET, SECRET, CONFIDENTIAL or PROTECTED by Canada, Canada shall be entitled to inspect the Contractor's premises and the premises of its subcontractors or suppliers and any other person at any tier, for security purposes at any time during the term of the Contract, and the Contractor shall comply with, and ensure that any such subcontractors or suppliers comply with all written instructions issued by the DCC Representative dealing with the Material so identified, including any requirement that employees of the Contractor and its subcontractors and suppliers and any other person at any tier execute and deliver declarations relating to reliability screenings, security clearances and other procedures. .5 The Contractor shall safeguard the Work and the Contract, the Specifications, Plans, drawings and any other information provided by Canada to the Contractor, and shall be liable to Canada for any loss or damage from any causes. 1.3
1.4
Status of the Contractor 1.3.1
The Contractor is engaged under the Contract as an independent Contractor.
1.3.2
The Contractor, its subcontractors and suppliers and any other person at any tier and their employees are not engaged by the Contract as employees, servants or agents of Canada.
1.3.3
For the purposes of the Contract the Contractor shall be solely responsible for any and all payments and deductions required to be made by law including those required for Canada or Quebec Pension Plans, Employment Insurance, Worker's Compensation, provincial health or insurance plans, and Income Tax.
Rights and Remedies 1.4.1
Except as expressly provided in the Contract, the duties and obligations imposed by the Contract and the rights and remedies available thereunder shall be in addition to and not a limitation of any duties, obligations, rights, and remedies otherwise imposed or available by law.
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GENERAL CONDITIONS 1.5
Time of the Essence 1.5.1
1.6
Time is of the essence of the Contract.
Indemnification by the Contractor 1.6.1
The Contractor shall indemnify and save Canada harmless from and against all claims, demands, losses, costs, damages, actions, suits, or proceedings whether in respect to losses suffered by Canada or in respect of claims by any third party, brought or prosecuted and in any manner based upon, arising out of, related to, occasioned by, or attributable to the activities of the Contractor in performing the Work, provided such claims are caused by the negligent or deliberate acts or omissions of the Contractor, or those for whom it is responsible at law.
1.6.2
The Contractor’s obligation to indemnify Canada for losses related to first party liability shall be limited to: .1 In respect to losses for which insurance is to be provided pursuant to GC10.1, “Insurance Contracts”, the Commercial General Liability insurance limit for one occurrence as referred to in the “DCL243 - Insurance Conditions”. .2 In respect to losses for which insurance is not required to be provided in accordance with GC10.1, “Insurance Contracts”, the greater of the Contract Amount or $5,000,000, but in no event shall the sum be greater than $20,000,000. The limitation of this obligation shall be exclusive of interest and all legal costs and shall not apply to any infringement of intellectual property rights or any breach of warranty obligations.
1.7
1.6.3
The Contractor’s obligation to indemnify Canada for losses related to third party liability shall have no limitation and shall include the complete costs of defending any legal action by a third party. If requested by Canada, the Contractor shall defend Canada against any third party claims.
1.6.4
The Contractor shall pay all royalties and patent fees required for the performance of the Contract and, at the Contractor's expense, shall defend all claims, actions or proceedings against Canada charging or claiming that the Work or any part thereof provided or furnished by the Contractor to Canada infringes any patent, industrial design, copyright trademark, trade secret or other proprietary right enforceable in Canada.
1.6.5
Notice in writing of a claim shall be given within a reasonable time after the facts, upon which such claim is based, became known.
Indemnification by Canada 1.7.1
Subject to the Crown Liability and Proceedings Act, the Patent Act, and any other law that affects Canada's rights, powers, privileges or obligations, Canada shall indemnify and save the Contractor harmless from and against all claims, demands, losses, costs, damage, actions, suits or proceedings arising
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GENERAL CONDITIONS out of the Contractor's activities under the Contract that are directly attributable to .1 a lack of or a defect in Canada's title to the Work site if owned by Canada, whether real or alleged; or .2 an infringement or an alleged infringement by the Contractor of any patent of invention or any other kind of intellectual property occurring while the Contractor was performing any act for the purposes of the Contract employing a model, plan or design or any other thing related to the Work that was supplied by Canada to the Contractor. 1.8
Laws, Permits and Taxes 1.8.1
The Contractor shall comply with all federal, provincial and municipal laws and regulations applicable to the performance of the Work or any part thereof including, without limitation, all laws concerning health and labour conditions and the protection of the environment, and shall require compliance therewith by all of its subcontractors and suppliers at any tier as if the Work were being performed for an owner other than Canada. The Contractor shall furnish evidence of compliance with such laws and regulations to the DCC Representative at such times as the DCC Representative may reasonably request.
1.8.2
Unless stipulated otherwise in the Contract, the Contractor shall obtain and maintain all permits, certificates, licences, registrations and authorizations required for the lawful performance of the Work.
1.8.3
Prior to the commencement of the Work at the site, the Contractor shall tender to a municipal authority an amount equal to all fees and charges that would be lawfully payable to that municipal authority in respect of building permits as if the Work were being performed for an owner other than Canada.
1.8.4
Within ten (10) days of making a tender pursuant to paragraph 1.8.3 of GC1.8, the Contractor shall notify the DCC Representative of the amount properly tendered and whether or not the municipal authority has accepted that amount.
1.8.5
If the municipal authority has not accepted the amount tendered, the Contractor shall pay that amount to Canada within six (6) days after the time stipulated in paragraph 1.8.4 of GC1.8.
1.8.6
For the purposes of this clause, "municipal authority" means any authority that would have jurisdiction respecting permission to perform the Work if the owner were not Canada.
1.8.7
Notwithstanding the residency of the Contractor, the Contractor shall pay any applicable tax arising from or related to the performance of the Work under the Contract.
1.8.8
In accordance with the Statutory Declaration referred to in paragraph 5.5.4 of GC5.5, "Interim Certificate of Completion", a Contractor who has neither residence nor place of business in the province or territory in which Work under
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GENERAL CONDITIONS the Contract is being performed shall provide Canada with proof of registration with the provincial sales tax authorities in the said province. 1.8.9
1.9
For the purpose of the payment of any applicable tax or the furnishing of security for the payment of any applicable tax arising from or related to the performance of the Work, and notwithstanding the provision that all Material, Plant and interest of the Contractor in all real property, licences, powers and privileges, become the property of Canada after the time of purchase in accordance with GC3.10, "Material Plant and Real Property Become Property of Canada", the Contractor shall be liable, as a user or consumer, for the payment or for the furnishing of security for the payment of any applicable tax payable, at the time of the use or consumption of that Material, Plant or interest of the Contractor in accordance with the relevant legislation.
Workers’ Compensation 1.9.1
Prior to commencing on-site Work, at the time of submitting its first progress claim, at the time of Substantial Completion of the Work, and prior to issuance of the Final Certificate of Completion, the Contractor shall provide evidence of compliance with workers' compensation legislation applicable to the place of the Work, including payments due thereunder.
1.9.2
At any time during the term of the Contract, when requested by Canada, the Contractor shall provide such evidence of compliance by the Contractor, its subcontractors and any other person at any tier and any other person performing part of the Work who is required to comply with such legislation.
1.10 National Security 1.10.1
If Canada determines that the Work is of a class or kind that involves national security, Canada may order the Contractor to .1 provide Canada with any information concerning persons employed or to be employed by the Contractor for purposes of the Contract; and .2 remove any person from the site of the Work if, in the opinion of Canada, that person may be a risk to the national security; and the Contractor shall comply with the order.
1.10.2
In all contracts with persons who are to be employed in the performance of the Contract, the Contractor shall make provision for the performance of any obligation that may be imposed upon the Contractor under paragraph 1.10.1 of GC1.10.
1.11 Unsuitable Workers 1.11.1
The DCC Representative shall instruct the Contractor to remove from the site of the Work any person employed by the Contractor for purposes of the Contract who, in the opinion of the DCC Representative, is incompetent or is guilty of improper conduct, and the Contractor shall not permit a person who has been removed to return to the site of the Work.
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GENERAL CONDITIONS 1.12 Public Ceremonies and Signs 1.12.1
The Contractor shall not permit any public ceremony in connection with the Work without the prior consent of the DCC Representative.
1.12.2
The Contractor shall not erect nor permit the erection of any sign or advertising on the Work or its site without the prior consent of the DCC Representative.
1.13 Conflict of Interest 1.13.1
It is a term of the Contract that no individual, for whom the post-employment provisions of the Conflict of Interest and Post-Employment Code for Public Office Holders or the Values and Ethics Code for the Public Service apply, shall derive a direct benefit from the Contract unless that individual is in compliance with the applicable post-employment provisions.
1.13.2
Contractors shall not employ DCC employees in activities that might subject DCC employees to demands incompatible with their official duties or cast doubt on their ability to perform their duties objectively.
1.14 Agreements and Amendments 1.14.1
The Contract constitutes the entire and sole agreement between the parties with respect to the subject matter of the Contract and supersedes all previous negotiations, communications and other agreements, whether written or oral, relating to it, unless they are incorporated by reference in the Contract. There are no terms, covenants, representations, statements or conditions binding on the parties other than those contained in the Contract.
1.14.2
The failure of either party at any time to require performance by the other party of any provision hereof shall not affect the right thereafter to enforce such provision. Nor shall the waiver by either party of any breach of any covenant, term or condition hereof be taken to be held to be a waiver of any further breach of the same covenant, term or condition.
1.14.3
The Contract may be amended only as provided for in the Contract.
1.15 Succession 1.15.1
The Contract shall inure to the benefit of and be binding upon the parties hereto and their lawful heirs, executors, administrators, successors and, subject to GC1.16, "Assignment", permitted assigns.
1.16 Assignment 1.16.1
The Contractor shall not make any assignment of the Contract, either in whole or in part, without the written consent of the DCC Representative.
1.17 No Bribe 1.17.1
The Contractor represents and covenants that no bribe, gift, benefit, nor other inducement has been nor shall be paid, given, promised or offered directly or indirectly to any official or employee of Canada or to a member of the family of such a person, with a view to influencing the entry into the Contract or the administration of the Contract. 12 of 63
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GENERAL CONDITIONS 1.18 Certification – Contingency Fees 1.18.1
In this clause .1 "contingency fee" means any payment or other compensation that is contingent upon or is calculated upon the basis of a degree of success in soliciting or obtaining a Government contract or negotiating the whole or any part of its terms; .2 "employee" means a person with whom the Contractor has an employer/employee relationship; and .3 "person" includes an individual or a group of individuals, a corporation, a partnership, an organization and an association and, without restricting the generality of the foregoing, includes any individual who is required to file a return with the registrar pursuant to section 5 of the Lobbyists Registration Act, R.S.C. 1985 c.44 (4th Supplement) as the same may be amended from time to time.
1.18.2
The Contractor certifies that it has not directly or indirectly paid nor agreed to pay and covenants that it shall not directly or indirectly pay nor agree to pay a contingency fee for the solicitation, negotiation or obtaining of the Contract to any person other than an employee acting in the normal course of the employee's duties.
1.18.3
All accounts and records pertaining to payments of fees or other compensation for the solicitation, obtaining or negotiation of the Contract shall be subject to the accounts and audit provisions of the Contract.
1.18.4
If the Contractor certifies falsely under this section or is in default of the obligations contained therein, Canada may either take the Work out of the Contractor's hands in accordance with the provisions of the Contract or recover from the Contractor by way of reduction to the Contract Amount or otherwise, the full amount of the contingency fee.
1.19 International Sanctions 1.19.1
Persons and companies in Canada, and Canadians outside of Canada are bound by economic sanctions imposed by Canada. As a result, the Government of Canada cannot accept delivery of goods or services that originate, either directly or indirectly, from the countries or persons subject to economic sanctions.
1.19.2
It is a condition of the Contract that the Contractor not supply to the Government of Canada any goods or services which are subject to economic sanctions.
1.19.3
By law, the Contractor must comply with changes to the regulations imposed during the life of the Contract. During the performance of the Contract should the imposition of sanctions against a country or person or the addition of a good or service to the list of sanctioned goods or services cause an impossibility of performance for the Contractor, the Contractor may request that
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GENERAL CONDITIONS the Contract be terminated in accordance with GC7.3, "Termination of Contract". GC2 – ADMINISTRATION OF THE CONTRACT 2.1
2.2
DCC Representative's Authority 2.1.1
Canada shall designate a DCC Representative and shall notify the Contractor of the name, address and telephone number of the DCC Representative.
2.1.2
The DCC Representative shall perform Canada's duties and functions under the Contract.
2.1.3
The DCC Representative shall be authorized to issue notices, instructions and directions to the Contractor and to accept on behalf of Canada any notice, order or other communication from the Contractor relating to the Work.
2.1.4
The DCC Representative shall, within a reasonable time, review and respond to submissions made by the Contractor in accordance with the requirements of the Contract.
Interpretation of Contract 2.2.1
If, at any time before the DCC Representative has issued a Final Certificate of Completion, any question arises between the parties about whether anything has been done as required by the Contract or about what the Contractor is required by the Contract to do, and in particular but without limiting the generality of the foregoing, about .1 the meaning of anything in the Plans and Specifications; .2 the meaning to be given to the Plans and Specifications in case of any error therein, omission therefrom, or obscurity or discrepancy in their wording or intention; .3 whether or not the quality or quantity of any Material or workmanship supplied or proposed to be supplied by the Contractor meets the requirements of the Contract; .4 whether or not the labour, Plant or Material performed, used and supplied by the Contractor for performing the Work and carrying out the Contract are adequate to ensure that the Work shall be performed in accordance with the Contract and that the Contract shall be carried out in accordance with its terms; .5 what quantity of any of the Work has been completed by the Contractor; or .6 the timing and scheduling of the various phases of the performance of the Work as specified in the Contract; the question shall be decided, subject to the provisions of GC8, "Dispute Resolution", by Canada.
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GENERAL CONDITIONS
2.3
2.2.2
The Contractor shall perform the Work in accordance with any decisions of the DCC Representative that are made under paragraph 2.2.1 of GC2.2 and in accordance with any consequential directions given by the DCC Representative.
2.2.3
If the Contractor fails to comply with any instruction or direction issued by the DCC Representative pursuant to the Contract, Canada may employ such methods as Canada deems advisable to do what the Contractor failed to do, and the Contractor shall, on demand, pay Canada an amount that is equal to the aggregate of all costs, expenses and damages incurred or sustained by Canada by reason of the Contractor's failure to comply with such instruction or direction, including the cost of any methods employed by Canada in doing what the Contractor failed to do.
Notices 2.3.1
Subject to paragraph 2.3.3 of GC2.3, any notice, order or other communication may be given in any manner, and if required to be in writing, shall be addressed to the party to whom it is intended at the address in the Contract or at the last address of which the sender has received written notice in accordance with this section.
2.3.2
Any notice, order or other communication given in writing in accordance with paragraph 2.3.1 of GC2.3 shall be deemed to have been received by either party .1 if delivered personally, on the day that it was delivered; .2 if forwarded by mail, on the earlier of the day it was received or the sixth day after it was mailed; and .3 if forwarded by facsimile or electronic mail, 24 hours after it was transmitted.
2.3.3
2.4
Site Meetings 2.4.1
2.5
A notice given under GC7.1, "Taking the Work out of the Contractor's Hands", GC7.2, "Suspension of Work" and GC7.3, "Termination of Contract", shall be given in writing and, if delivered personally, shall be delivered, if the Contractor is a sole proprietor, to the Contractor or, if the Contractor is a partnership or corporation, to an officer thereof. In consultation with the DCC Representative, the Contractor shall arrange site meetings at regular intervals, with all involved parties who are to attend, in order to ensure, among other things, the proper co-ordination of the Work.
Review and Inspection of Work 2.5.1
The DCC Representative shall review the Work to determine if it is proceeding in conformity with the Contract and to record the necessary data to make an assessment of the value of Work completed. The DCC Representative shall measure and record the quantities of labour, Plant and Material performed, used or supplied by the Contractor in performing the Work or any part thereof that is subject to a Unit Price Arrangement and, on request, shall inform the 15 of 63
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GENERAL CONDITIONS Contractor of those measurements, and permit the Contractor to inspect any records pertaining thereto.
2.6
2.5.2
The DCC Representative shall reject Work or Material which in the DCC Representative’s opinion does not conform to the requirements of the Contract, and shall require inspection or testing of Work, whether or not such Work is fabricated, installed, or completed. If such Work is not in accordance with the requirements of the Contract, the Contractor shall correct the Work and shall pay Canada, on demand, all reasonable costs and expenses that were incurred by Canada in having the examination performed.
2.5.3
The Contractor shall provide the DCC Representative with access to the Work and its site at all times, and at all times shall provide sufficient, safe, and proper facilities for the review and inspection of the Work by persons authorized by the DCC Representative and any representatives of those authorities having jurisdiction. If parts of the Work are in preparation at locations other than the site of the Work, the DCC Representative shall be given access to such Work whenever it is in progress.
2.5.4
The Contractor shall furnish the DCC Representative with such information respecting the performance of the Contract as the DCC Representative may require, and render every possible assistance to enable the DCC Representative to verify that the Work is performed in accordance with the Contract, carry out any other duties and exercise any powers in accordance with the Contract.
2.5.5
If Work is designated for tests, inspections, or approvals in the Contract or by the DCC Representative’s instructions, or by laws or ordinances of the place of the Work, the Contractor shall give the DCC Representative reasonable notice of when such Work shall be ready for review and inspection. The Contractor shall arrange for and shall give the DCC Representative reasonable notice of the date and time of inspections, tests or approvals.
2.5.6
If the Contractor covers, or permits to be covered, Work that has been designated for tests, inspections or approvals before such tests, inspections or approvals are made, completed or given, the Contractor shall, if so directed by the DCC Representative, uncover such Work, have the inspections, tests or approvals satisfactorily made, completed or given and make good the covering of the Work at the Contractor's expense.
Superintendent 2.6.1
Prior to commencing the Work, the Contractor shall designate a Superintendent and shall notify the DCC Representative of the name, address and telephone number of the Superintendent. The Contractor shall keep the Superintendent at the Work site during working hours until the Work has reached completion.
2.6.2
The Superintendent shall be in full charge of the operations of the Contractor during the performance of the Work and shall be authorized to accept on behalf
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GENERAL CONDITIONS of the Contractor any notice, order or other communication given to the Superintendent or the Contractor relating to the Work.
2.7
2.6.3
Upon request of the DCC Representative, the Contractor shall remove any Superintendent who, in the opinion of the DCC Representative, is incompetent or has been guilty of improper conduct, and shall forthwith designate another Superintendent who is acceptable to the DCC Representative.
2.6.4
The Contractor shall not substitute a Superintendent without the written consent of the DCC Representative. If a Superintendent is substituted without such consent, the DCC Representative shall be entitled to refuse to issue any documentation or certification relating to progress payments, Substantial Completion or Completion of the Work until the Superintendent has returned to the Work site or another Superintendent who is acceptable to the DCC Representative has been substituted.
Non-discrimination in Hiring and Employment of Labour 2.7.1
For the purposes of this clause, "persons" include the Contractor, its subcontractors and suppliers at any tier and their respective employees, agents, licensees or invitees and any other individual involved in the performance of the Work or granted access to the Work site. A "person" includes any partnership, proprietorship, firm, joint venture, consortium and corporation.
2.7.2
Without restricting the provisions of paragraph 2.6.3 of GC2.6, "Superintendent", the Contractor shall not refuse to employ and shall not discriminate in any manner against any person because .1 of that person's race, national origin, colour, religion, age, sex or marital status; .2 of the race, national origin, colour, religion, age, sex, or marital status of any person having any relationship or association with that person; or .3 a complaint has been made or information has been given by or in respect of that person relating to an alleged failure by the Contractor to comply with paragraphs 2.7.2.1 and 2.7.2.2 of GC2.7.
2.7.3
Within two (2) Working Days immediately following receipt of a written complaint pursuant to paragraph 2.7.2 of GC2.7, the Contractor shall .1 cause to have issued a written direction to the person or persons named by the complainant to cease all actions that form the basis of the complaint; .2 forward a copy of the complaint to Canada by registered mail or courier service; and .3 when the Labour Conditions are applicable under the circumstances of the complaint, forward a copy of the complaint to HRSDC - Labour to the attention of the appropriate Director as described in the Labour Conditions ("HRSDC - Labour" means the labour component of the federal Department of Human Resources and Social Development).
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Within twenty four (24) hours immediately following receipt of a direction from Canada to do so, the Contractor shall cause to have removed from the site of the Work and from the performance of Work under the Contract, any person or persons whom Canada believes to be in breach of the provisions of paragraph 2.7.2 of GC2.7.
2.7.5
No later than thirty (30) days after receipt of the direction referred to in paragraph 2.7.4 of GC2.7, the Contractor shall cause the necessary action to be commenced to remedy the breach described in the direction.
2.7.6
If a direction is issued pursuant to paragraph 2.7.4 of GC2.7, Canada may withhold from monies that are due and payable to the Contractor or setoff pursuant to GC5.9, "Right of Setoff", whichever is applicable, an amount representing the sum of the costs and payment referred to in paragraph 2.7.8 of GC2.7.
2.7.7
If the Contractor fails to proceed in accordance with paragraph 2.7.5 of GC2.7, Canada shall take the necessary action to have the breach remedied, and shall determine all supplementary costs incurred by Canada as a result.
2.7.8
Canada may make a payment directly to the complainant from monies that are due and payable to the Contractor upon receipt from the complainant of .1 a written award issued pursuant to the federal Commercial Arbitration Act, R.S.C. 1985, c. 17 (2nd Supp.); .2 a written award issued pursuant to the Canadian Human Rights Act, R.S.C. 1985, c. H-6; .3 a written award issued pursuant to provincial or territorial human rights legislation; or .4 a judgement issued by a court of competent jurisdiction.
2.8
2.7.9
If the DCC Representative is of the opinion that the Contractor has breached any of the provisions of this clause, Canada may take the Work out of the Contractor's hands pursuant to GC7.1, "Taking the Work out of the Contractor's Hands".
2.7.10
Subject to paragraph 3.6.7 of GC3.6, "Subcontracting", the Contractor shall ensure that the provisions of this clause are included in all agreements and contracts entered into as a consequence of the Work.
Accounts and Audits 2.8.1
The Contractor shall, in addition to the requirements expressed in paragraph 3.4.6 of GC3.4, "Execution of the Work", maintain full records of the Contractor's estimated and actual cost of the Work together with all tender calls, quotations, contracts, correspondence, invoices, receipts and vouchers relating thereto, and shall make them available on request to audit and inspection by Canada and the Deputy Receiver General for Canada or by persons designated to act on behalf of either or both of them.
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The Contractor shall allow any of the persons referred to in paragraph 2.8.1 of GC2.8 to make copies of and take extracts from any of the records and material, and shall furnish such persons or entities with any information those persons or entities may require from time to time in connection with such records and material.
2.8.3
The Contractor shall maintain and keep the records intact until the expiration of seven (7) years after the date that a Final Certificate of Completion has been issued or until the expiration of such other period of time as Canada may direct.
2.8.4
The Contractor shall cause all subcontractors at any tier and all other persons directly or indirectly controlled by or affiliated with the Contractor and all persons directly or indirectly having control of the Contractor to comply with the requirements of this clause as if they were the Contractor.
GC3 – EXECUTION AND CONTROL OF THE WORK 3.1
Progress Schedule 3.1.1
The Contractor shall .1 prepare and submit to the DCC Representative, prior to the submission of the Contractor's first progress claim, a progress schedule in accordance with the requirements set out in the Contract; .2 monitor the progress of the Work relative to the schedule and update the schedule as stipulated by the Contract documents; .3 advise the DCC Representative of any revisions to the schedule required as the result of any extension of time for completion of the Contract that was approved by the DCC Representative; and .4 prepare and submit to the DCC Representative, at the time of issuance of an Interim Certificate of Completion, an update of any schedule clearly showing a detailed timetable that is acceptable to the DCC Representative for the completion of any unfinished Work and the correction of all listed defects.
3.2
Errors and Omissions 3.2.1
3.3
The Contractor shall report promptly to the DCC Representative any errors, discrepancies, or omissions the Contractor may discover when reviewing the Contract documents. In making a review, the Contractor does not assume any responsibility to Canada for the accuracy of the review. The Contractor shall not be liable for damage or costs resulting from such errors, discrepancies, or omissions in the Contract documents prepared by or on behalf of Canada that the Contractor did not discover.
Construction Safety 3.3.1
Subject to GC3.7, "Construction by Other Contractors or Workers", the Contractor shall be solely responsible for construction safety at the place of the Work and for initiating, maintaining and supervising all safety precautions and 19 of 63
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GENERAL CONDITIONS programs in connection with the performance of the Work. In any emergency, the Contractor shall stop the Work, make changes or order extra Work to ensure the safety of life and the protection of the Work and neighbouring property. 3.3.2
3.4
Prior to commencing the Work, the Contractor shall notify the authorities having jurisdiction for construction safety at the site of the Work with respect to the intended commencement of the Work, and shall provide such authority with whatever additional information may be required by that authority.
Execution of the Work 3.4.1
The Contractor shall perform, use or supply and pay for, all labour, Plant, Material, tools, construction machinery and equipment, water, heat, light, power, transportation and other facilities and services necessary for the performance of the Work in accordance with the Contract.
3.4.2
The Contractor shall, at all times, perform the Work in a proper, diligent and expeditious manner as is consistent with construction industry standards and in accordance with the progress schedule prepared pursuant to GC3.1, "Progress Schedule", and shall provide sufficient personnel to fulfil the Contractor's obligations in accordance with that schedule.
3.4.3
Subject to paragraph 3.4.4 of GC3.4, the Contractor shall have complete care, custody and control of the Work and shall direct and supervise the Work so as to ensure compliance with the Contract. The Contractor shall be responsible for construction means, methods, techniques, sequences and procedures and for co-ordinating the various parts of the Work.
3.4.4
When requested in writing by the DCC Representative, the Contractor shall make appropriate alterations in the method, Plant or workforce at any time the DCC Representative considers the Contractor's actions to be unsafe or damaging to either the Work, existing facilities, persons at the site of the Work or the environment.
3.4.5
The Contractor shall have sole responsibility for the design, erection, operation, maintenance and removal of temporary structures and other temporary facilities and for the construction methods used in their erection, operation, maintenance and removal. The Contractor shall engage and pay for registered professional engineering personnel, skilled in the appropriate discipline to perform these functions if required by law or by the Contract, and in all cases when such temporary facilities and their methods of construction are of such a nature that professional engineering skill is required to produce safe and satisfactory results.
3.4.6
The Contractor shall keep at least one copy of current Contract documents, submittals, reports, and records of meetings at the site of the Work, in good order and available to the DCC Representative.
3.4.7
Except for any part of the Work that is necessarily performed away from or off the site of the Work, the Contractor shall confine Plant, storage of Material, and
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GENERAL CONDITIONS operations of employees to limits indicated by laws, ordinances, permits or the Contract documents. 3.5
Material 3.5.1
Unless otherwise specified in the Contract, all Material incorporated in the Work shall be new.
3.5.2
Subject to paragraph 3.5.3 of GC3.5, if a specified reused, refurbished, or recycled item of Material is not available, the Contractor shall apply to the DCC Representative to substitute a similar item for the one specified.
3.5.3
If the DCC Representative agrees that the Contractor's application for substitution of a reused, refurbished or recycled item is warranted, and that the substitute item is of acceptable quality and value to that specified and is suitable for the intended purpose, the DCC Representative may approve the substitution, subject to the following: .1 the request for substitution shall be made in writing to the DCC Representative and shall be substantiated by information in the form of the manufacturer's literature, samples and other data that may be required by the DCC Representative; .2 the Contractor shall make the request for substitution in a manner that shall not negatively affect the progress schedule of the Contract and well in advance of the time the item of Material must be ordered; .3 substitution of Material shall be permitted only with the prior written approval of the DCC Representative, and any substituted items that are supplied or installed without such approval shall be removed from the site of the Work at the expense of the Contractor, and specified items installed at no additional cost to Canada; and .4 the Contractor shall be responsible for all additional expenses incurred by Canada, the Contractor, its subcontractors and suppliers at any tier due to the Contractor's use of the substitute.
3.6
Subcontracting 3.6.1
Subject to the provisions of this clause, the Contractor may subcontract any part of the Work but not the whole of the Work.
3.6.2
The Contractor shall notify the DCC Representative in writing of the Contractor's intention to subcontract.
3.6.3
A notification referred to in paragraph 3.6.2 of GC3.6 shall identify the part of the Work and the Subcontractor with whom the Contractor intends to subcontract.
3.6.4
Canada may for reasonable cause, object to the intended subcontracting by notifying the Contractor in writing within six (6) days of receipt by the DCC Representative of a notification referred to in paragraph 3.6.2 of GC3.6.
3.6.5
If Canada objects to a subcontracting, the Contractor shall not enter into the intended subcontract. 21 of 63
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3.7
3.6.6
The Contractor shall not change, nor permit to be changed, a Subcontractor engaged by the Contractor, in accordance with this clause, without the written consent of Canada.
3.6.7
The Contractor shall ensure that all the terms and conditions of the Contract that are of general application shall be incorporated in every other contract issued as a consequence of the Contract, at whatever tier, except those contracts issued solely to suppliers at any tier for the supply of Plant or Material.
3.6.8
Neither a subcontracting nor Canada's consent to a subcontracting shall be construed to relieve the Contractor from any obligation under the Contract or to impose any liability upon Canada.
Construction by Other Contractors or Workers 3.7.1
Canada reserves the right to send other contractors or workers, with or without Plant and Material, onto the site of the Work.
3.7.2
When other contractors or workers are sent on to the site of the Work, Canada shall .1 enter into separate contracts, to the extent it is possible, with the other contractors under conditions of contract that are compatible with the conditions of the Contract; .2 ensure that the insurance coverage provided by the other contractors is coordinated with the insurance coverage of the Contractor as it affects the Work; and .3 take all reasonable precautions to avoid labour disputes or other disputes arising from the Work of the other contractors or workers.
3.7.3
When other contractors or workers are sent on to the site of the Work, the Contractor shall .1 co-operate with them in the carrying out of their duties and obligations; .2 co-ordinate and schedule the Work with the Work of the other contractors and workers; .3 participate with other contractors and workers in reviewing their construction schedules when directed to do so; .4 where part of the Work is affected by or depends upon the Work of other contractors or workers for its proper execution, promptly report to the DCC Representative in writing and prior to proceeding with that part of the Work, any apparent deficiencies in such Work. Failure by the Contractor to so report shall invalidate any claims against Canada by reason of the deficiencies in the Work of other contractors or workers except those deficiencies that are not then reasonably discoverable; and .5 when designated as being responsible for construction safety at the place of work in accordance with the applicable provincial or territorial laws, carry out its duties in that role and in accordance with those laws. 22 of 63
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GENERAL CONDITIONS 3.7.4
If, when entering into the Contract, the Contractor could not have reasonably foreseen nor anticipated the sending of other contractors or workers on to the site of the Work and provided the Contractor .1 incurs extra expense in complying with the requirements of paragraph 3.7.3 of GC3.7; and .2 gives Canada written notice of a claim for that extra expense within thirty (30) days of the date that the other contractors or workers were sent onto the Work or its site; Canada shall pay the Contractor the cost of the extra labour, Plant and Material that was necessarily incurred, calculated in accordance with GC6.4, "Determination of Price".
3.8
3.9
Labour and Fair Wages 3.8.1
The Labour Conditions and the Schedules of Wage Rates form part of these General Conditions.
3.8.2
To the extent to which they are available, consistent with proper economy and the expeditious carrying out of the Work, the Contractor shall, in the performance of the Work, employ a reasonable number of persons who have been on active service with the Armed Forces of Canada and have been honourably discharged therefrom.
3.8.3
The Contractor shall maintain good order and discipline among the Contractor's employees and workers engaged in the Work and shall employ on the site of the Work personnel skilled in the tasks assigned.
Truck Haulage Rates 3.9.1
The Contractor must pay the Supplier of truck haulage services at least the minimum haul rates established by provincial or territorial legislation and related regulations, in the geographical region in which the majority of the Work is located.
3.10 Material, Plant and Real Property Become Property of Canada 3.10.1
Subject to paragraph 1.8.9 of GC1.8, "Laws Permits and Taxes", all Material and Plant and the interest of the Contractor in all real property, licences, powers and privileges purchased, used or consumed by the Contractor for the Work shall, immediately after the time of their purchase, use or consumption be the property of Canada for the purposes of the Work and they shall continue to be the property of Canada .1 in the case of Material, until Canada indicates that the Materials shall not be required for the Work; and .2 in the case of Plant, real property, licences, powers and privileges, until Canada indicates that the interest vested in Canada therein is no longer required for the purposes of the Work.
3.10.2
Material or Plant, that is the property of Canada by virtue of paragraph 3.9.1 of GC3.9, shall not be taken away from the site of the Work nor used nor 23 of 63
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GENERAL CONDITIONS disposed of except for the purposes of the Work without the written consent of Canada. 3.10.3
Canada is not liable for loss of nor damage from any cause to the Material or Plant referred to in paragraph 3.9.1 of GC3.9, and the Contractor is liable for such loss or damage notwithstanding that the Material or Plant is the property of Canada.
3.11 Defective Work 3.11.1
The Contractor shall promptly remove from the site of the Work and replace or re-execute defective Work whether or not the defective Work has been incorporated in the Work and whether or not the defect is the result of poor workmanship, use of defective Material, or damage through carelessness or other act or omission of the Contractor.
3.11.2
The Contractor, at the Contractor's expense, shall promptly make good other Work destroyed or damaged by such removals or replacements.
3.11.3
If, in the opinion of Canada, it is not expedient to correct defective Work or Work not performed as provided for in the Contract documents, the DCC Representative may deduct from the amount otherwise due to the Contractor the difference in value between the Work as performed and that called for by the Contract documents.
3.11.4
The failure of the DCC Representative to reject any defective Work or Material shall not constitute acceptance of the defective Work or Material.
3.12 Clean-up of Site 3.12.1
The Contractor shall maintain the Work and its site in a tidy condition and free from an accumulation of waste material and debris.
3.12.2
Before the issue of an Interim Certificate of Completion, the Contractor shall remove waste material and debris, and all Plant and Material not required for the performance of the remaining Work and, unless otherwise stipulated in the Contract Documents, shall cause the Work and its site to be clean and suitable for occupancy by Canada.
3.12.3
Before the issue of a Final Certificate of Completion, the Contractor shall remove all surplus Plant and Materials and any waste products and debris from the site of the Work.
3.12.4
The Contractor's obligations described in paragraphs 3.11.1 to 3.11.3 of GC3.11 do not extend to waste products and other debris caused by Canada's servants, or by other contractors and workers referred to in GC3.7, "Construction by Other Contractors or Workers".
3.13 Warranty and Rectification of Defects in Work 3.13.1
Without restricting any warranty or guarantee implied or imposed by law or contained in the Contract, the Contractor shall, at the Contractor's expense .1 rectify and make good any defect or fault that appears in the Work or comes to the attention of Canada with respect to those parts of the Work 24 of 63
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GENERAL CONDITIONS accepted in connection with the Interim Certificate of Completion within twelve (12) months from the date of Substantial Completion; and .2 rectify and make good any defect or fault that appears in or comes to the attention of Canada in connection with those parts of the Work described in the Interim Certificate of Completion within twelve (12) months from the date of the Final Certificate of Completion. .3 transfer and assign, to Canada, any Subcontractor, manufacturer or Supplier extended warranties or guarantees implied or imposed by law or contained in the Contract covering periods beyond the twelve (12) months stipulated above. Extended warranties or guarantees referred to herein shall not extend the twelve (12)-month period whereby the Contractor, except as may be provided elsewhere in the Contract, must rectify and make good any defect or fault that appears in the Work or comes to the attention of Canada. .4 provide, to Canada prior to the issuance of the Final Certificate of Completion, a list of all extended warranties and guarantees referred to in paragraph 3.13.1.3 above. 3.13.2
Canada may direct the Contractor to rectify and make good any defect or fault referred to in paragraph 3.13.1 of GC3.13 or covered by any other expressed or implied warranty or guarantee and the Contractor shall rectify and make good such defect within the time stipulated in the direction.
3.13.3
A direction referred to in paragraph 3.13.2 of GC3.13 shall be in writing and shall be given to the Contractor in accordance with GC2.3, "Notices".
GC4 – PROTECTIVE MEASURES 4.1
4.2
Protection of Work and Property 4.1.1
The Contractor shall protect the Work and its site against loss or damage from any cause and shall similarly protect all Material, Plant and real property under the Contractor's care, custody and control whether or not such Material, Plant and real property are supplied by Canada to the Contractor.
4.1.2
The Contractor shall provide all facilities necessary for the purpose of maintaining security, and shall assist any person authorized by Canada to inspect or to take security measures in respect of the Work and its site.
4.1.3
Canada may direct the Contractor to do such things and to perform such Work as the DCC Representative considers reasonable and necessary to ensure compliance with or to remedy a breach of paragraphs 4.1.1 or 4.1.2 of GC4.1, and the Contractor, shall comply with such direction.
Precautions Against Damage, Infringement of Rights, Fire and Other Hazards 4.2.1
The Contractor shall do whatever is necessary to ensure that
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GENERAL CONDITIONS .1 no person, property, right, easement nor privilege is injured, damaged or infringed upon by reasons of the Contractor's activities in performing the Work; .2 pedestrian and other traffic on any public or private road or waterway is not unduly impeded, interrupted nor endangered by the performance or existence of the Work, Material or Plant; .3 fire hazards in or about the site of the Work are eliminated and any fire is promptly extinguished; .4 the health and safety of all persons employed in the performance of the Work is not endangered by the methods nor means of their performance; .5 adequate medical services are available to all persons employed on the Work or its site at all times during the performance of the Work; .6 adequate sanitation measures are taken in respect of the Work and its site; and .7 all stakes, buoys and marks placed on the Work or its site by Canada are protected and are not removed, defaced, altered nor destroyed. 4.2.2
4.3
Canada may direct the Contractor to do such things and to perform such Work as the DCC Representative considers reasonable and necessary to ensure compliance with or to remedy a breach of paragraph 4.2.1 of GC4.2, and the Contractor shall comply with the direction of the DCC Representative.
Material, Plant and Real Property Supplied by Canada 4.3.1
Subject to paragraph 4.3.2 of GC4.3, the Contractor is liable to Canada for any loss of or damage to Material, Plant or real property that is supplied or placed in the care, custody and control of the Contractor by Canada for use in connection with the Contract, whether or not that loss or damage is attributable to causes beyond the Contractor's control.
4.3.2
The Contractor is not liable to Canada for any loss or damage to Material, Plant or real property referred to in paragraph 4.3.1 of GC4.3 if that loss or damage results from and is directly attributable to reasonable wear and tear.
4.3.3
The Contractor shall not use any Material, Plant or real property supplied by Canada except for the purpose of performing the Contract.
4.3.4
When the Contractor fails to make good any loss or damage for which the Contractor is liable under paragraph 4.3.1 of GC4.3 within a reasonable time, Canada may cause the loss or damage to be made good at the Contractor's expense, and the Contractor shall thereupon be liable to Canada for the cost thereof and shall, on demand, pay to Canada an amount equal to that cost.
4.3.5
The Contractor shall keep records of all Material, Plant and real property supplied by Canada as Canada requires and shall satisfy Canada, when requested, that such Material, Plant and real property are at the place and in the condition in which they ought to be.
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GENERAL CONDITIONS 4.4
Contaminated Site Conditions 4.4.1
For the purposes of GC4.4, a contaminated site condition exists when a solid, liquid, gaseous, thermal or radioactive irritant or contaminant, or other hazardous or toxic substance or material, including moulds and other forms of fungi, is present at the site of the Work to an extent that constitutes a hazard, or potential hazard, to the environment, property, or the health or safety of any person.
4.4.2
If the Contractor encounters a contaminated site condition of which the Contractor is not aware or about which the Contractor has not been advised, or if the Contractor has reasonable grounds to believe that such a site condition exists at the site of the Work, the Contractor shall .1 take all reasonable steps, including stopping the Work, to ensure that no person suffers injury, sickness or death, and that neither property nor the environment is injured or destroyed as a result of the contaminated site condition; .2 immediately notify the DCC Representative of the circumstances in writing; and .3 take all reasonable steps to minimize additional costs that may accrue as a result of any work stoppage.
4.4.3
Upon receipt of a notification from the Contractor, Canada shall promptly determine whether a contaminated site condition exists, and the DCC Representative shall notify the Contractor in writing of any action to be taken, or Work to be performed, by the Contractor as a result of Canada's determination.
4.4.4
If the Contractor's services are required by Canada, the Contractor shall follow the direction of the DCC Representative with regard to any excavation, treatment, removal and disposal of any polluting substance or material.
4.4.5
Canada, at Canada's sole discretion, may enlist the services of experts and specialty contractors to assist in determining the existence of, and the extent and treatment of contaminated site conditions, and the Contractor shall allow them access and co-operate with them in the carrying out of their duties and obligations.
4.4.6
Except as may be otherwise provided for in the Contract, the provisions of GC6.4, "Determination of Price" shall apply to any additional work made necessary because of a contaminated site condition.
GC5 – TERMS OF PAYMENT 5.1
Interpretation In these Terms of Payment 5.1.1
The "payment period" means a period of thirty (30) consecutive days or such other longer period as may be agreed between the Contractor and Canada. 27 of 63
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5.2
5.1.2
An amount is "due and payable" when it is due and payable by Canada to the Contractor according to GC5.4, "Progress Payment", GC5.5, "Substantial Completion of the Work", or GC5.6 "Final Completion".
5.1.3
An amount is overdue when it remains unpaid on the first day following the day upon which it is due and payable.
5.1.4
The "date of payment" means the date of the negotiable instrument of an amount due and payable by the Receiver General for Canada.
5.1.5
The "Bank Rate" means the rate of interest established by the Bank of Canada as the minimum rate at which it makes short term advances to members of the Canadian Payments Association.
5.1.6
The "Average Bank Rate" means the simple arithmetic mean of the Bank Rate in effect at 4:00 p.m. Eastern Time each day during the calendar month which immediately precedes the calendar month in which payment is made.
Amount Payable 5.2.1
Subject to any other provisions of the Contract, Canada shall pay the Contractor, at the times and in the manner hereinafter set out, the amount by which the amounts payable by Canada to the Contractor in accordance with the Contract exceed the amounts payable by the Contractor to Canada, and the Contractor shall accept that amount as payment in full satisfaction for everything furnished and done by the Contractor in respect of the Work to which the payment relates.
5.2.2
When making any payment to the Contractor, the failure of Canada to deduct an amount payable to Canada by the Contractor shall not constitute a waiver of the right to do so, or an admission of lack of entitlement to do so in any subsequent payment to the Contractor.
5.2.3
Should any payment be made by Canada in excess of what is owed to the Contractor for the actual work performed, the Contractor will reimburse Canada the excess immediately, with or without demand, and any amounts outstanding shall bear simple interest at the Average Bank rate plus 3 percent per annum from the date of overpayment until the day prior to the date of repayment by the Contractor.
5.2.4
No payment other than a payment that is expressly stipulated in the Contract shall be made by Canada to the Contractor for any extra expense or any loss or damage incurred or sustained by the Contractor.
5.2.5
The successful Contractor will be required to furnish a detailed cost breakdown of the Contract Amount for the approval of the DCC Representative. This cost breakdown, to be submitted prior to or concurrently with the first progress claim, must show separate prices for each phase of the Work, as it is required as an agreed basis to check submitted progress claims. In addition, the Contractor will be required to furnish a complete time schedule of the various operations of the Work.
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GENERAL CONDITIONS 5.3
Increased or Decreased Costs 5.3.1
The Contract Amount shall not be increased nor decreased by reason of any increase or decrease in the cost of the Work that is brought about by an increase or decrease in the cost of labour, Plant, Material or any wage adjustment arising pursuant to the Labour Conditions.
5.3.2
Notwithstanding paragraph 5.3.1 of GC5.3, if any change, including a new imposition or repeal, of any tax, customs or other duty, charge, or any similar imposition that is imposed under sales, customs or excise tax legislation of the Government of Canada or any Provincial or Territorial legislation, affects the cost of the Work to the Contractor, and occurs .1 after the date of submission by the Contractor of its tender; or .2 after the date of submission of the last revision, if the Contractor's tender was revised; the Contract Amount shall be adjusted in the manner provided in paragraph 5.3.3 of GC5.3.
5.4
5.3.3
If a change referred to in paragraph 5.3.2 of GC5.3 occurs, the Contract Amount shall be increased or decreased by an amount established by an examination by Canada of the relevant records of the Contractor referred to in GC2.8, "Accounts and Audits", to be the increase or decrease in the cost incurred by the Contractor that is directly attributable to that change.
5.3.4
For the purpose of paragraph 5.3.2 of GC5.3, if a tax is changed after the tender closing, but public notice of the change has been given by the Minister of Finance or the corresponding Provincial or Territorial authority before that closing, the change shall be deemed to have occurred before the tender closing.
5.3.5
Notwithstanding paragraphs 5.3.2 to 5.3.4 of GC5.3, no adjustment to the Contract Amount in respect of the Work or a part thereof shall be made for a change in any imposition referred to in this section that occurs after the date required by the Contract for completion of the Work or that part of the Work.
Progress Payment 5.4.1
On the expiration of a payment period, the Contractor shall deliver to the DCC Representative .1 a written progress claim in a form acceptable to the DCC Representative that fully describes any part of the Work that has been completed, and any Material that was delivered to the Work site but not incorporated into the Work, during that payment period, and .2 a completed and signed statutory declaration containing a declaration that, up to the date of the progress claim, the Contractor has complied with all lawful obligations with respect to the Labour Conditions and that, in respect of the Work, all lawful obligations of the Contractor to its Subcontractors and Suppliers, referred to collectively in the declaration as " subcontractors and suppliers", have been fully discharged. 29 of 63
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GENERAL CONDITIONS 5.4.2
Within ten (10) days of receipt of a progress claim and statutory declaration from the Contractor, the DCC Representative shall inspect, or cause to have inspected, the part of the Work and the Material described in the progress claim, and shall issue a progress report to the Contractor, that indicates the value of the part of the Work and the Material described in the progress claim that, in the opinion of the DCC Representative .1 is in accordance with the Contract; and .2 was not included in any other progress report relating to the Contract.
5.4.3
Subject to GC5.2, "Amount Payable", and paragraph 5.4.5 of GC5.4, Canada shall pay the Contractor an amount that is equal to .1 95% of the value that is indicated in Canada's progress report if a labour and material payment bond has been furnished by the Contractor; or .2 90% of the value that is indicated in Canada's progress report if a labour and material payment bond has not been furnished by the Contractor.
5.4.4
Canada shall pay the amount referred to in paragraph 5.4.3 of GC5.4 not later than thirty (30) days after receipt by the DCC Representative .1 of both a progress claim and a statutory declaration referred to in paragraph 5.4.1 of GC5.4; or .2 an updated progress schedule, in accordance with GC3.1, "Progress Schedule".
5.4.5
5.5
In the case of the Contractor's first progress claim, it is a condition precedent to Canada's obligation under paragraph 5.4.3 of GC5.4 that the Contractor has provided all necessary documentation required by the Contract for the first progress claim.
Substantial Completion of the Work 5.5.1
If, at any time before the issuance of a Final Certificate of Completion, the DCC Representative determines that the Work has reached Substantial Completion as described in paragraph 1.1.4.1.2 of GC1.1.4, "Substantial Completion", the DCC Representative shall issue an Interim Certificate of Completion to the Contractor. The Interim Certificate of Completion shall state or describe .1 the date of Substantial Completion; .2 the parts of the Work not completed to the satisfaction of Canada; and .3 all things that must be done by the Contractor before a Final Certificate of Completion is issued and before the twelve (12)-month warranty period referred to in GC3.13, "Warranty and Rectification of Defects in Work", commences for the said parts and all the said things.
5.5.2
The issuance of an Interim Certificate of Completion does not relieve the Contractor from the Contractor's obligations under GC3.11, "Defective Work".
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GENERAL CONDITIONS 5.5.3
Subject to GC5.2, "Amount Payable", and paragraph 5.5.4 of GC5.5, Canada shall pay the Contractor the amount referred to in paragraph 5.2.1 of GC5.2, "Amount Payable", less the aggregate of .1 the sum of all payments that were made pursuant to GC5.4, "Progress Payment"; .2 an amount that is equal to the DCC Representative's estimate of the cost to Canada of rectifying defects described in the Interim Certificate of Completion; and .3 an amount that is equal to the DCC Representative's estimate of the cost to Canada of completing the parts of the Work described in the Interim Certificate of Completion other than defects listed therein.
5.5.4
Canada shall pay the amount referred to in paragraph 5.5.3 of GC5.5 not later than thirty (30) days after .1 the date of issue of an Interim Certificate of Completion, or .2 the Contractor has delivered to the DCC Representative .1 a statutory declaration containing a declaration by the Contractor that up to the date of the Certificate of Interim Completion, the Contractor has complied with all lawful obligations with respect to the Labour Conditions, discharged all its lawful obligations to its Subcontractors and Suppliers in respect of the Work under the Contract, and discharged its lawful obligations referred to in GC1.8, "Laws, Permits and Taxes"; .2 evidence of compliance with workers' compensation legislation in accordance with GC1.9, "Workers' Compensation"; and .3 an update of the progress schedule in accordance with the requirements of GC3.1, "Progress Schedule".
5.6
Final Completion 5.6.1
When the DCC Representative is of the opinion that the Contractor has complied with the Contract and all orders and directions made pursuant thereto, and that the Work has been completed as described in GC1.1.5, "Completion", the DCC Representative shall issue a Final Certificate of Completion to the Contractor and, if the Work or a portion of the Work is subject to a Unit Price Arrangement, the DCC Representative shall issue a Certificate of Final Quantities Adjustment Sheet that shall, subject to GC8, be binding upon and conclusive between Canada and the Contractor as to the quantities referred to therein.
5.6.2
Subject to GC5.2, "Amount Payable", and paragraph 5.6.3 of GC5.6, Canada shall pay the Contractor the amount referred to in GC5.2, "Amount Payable", less the aggregate of the sum of all payments that were made pursuant to GC5.4, "Progress Payment", and GC5.5, "Substantial Completion of Work".
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GENERAL CONDITIONS 5.6.3
Canada shall pay the amount referred to in paragraph 5.6.2 of GC5.6 not later than thirty (30) days after .1 the date of issue of a Final Certificate of Completion; or .2 the Contractor has delivered to the DCC Representative .1 a statutory declaration which contains a declaration by the Contractor that all of the Contractor's lawful obligations and any lawful claims against the Contractor that arose out of the performance of the Contract have been discharged and satisfied; and .2 evidence of compliance with workers' compensation legislation in accordance with GC1.9, "Workers' Compensation".
5.7
Payment Not Binding on Canada 5.7.1
5.8
Neither acceptance of a progress claim or progress report, nor any payment made by Canada under the Contract, nor partial or entire use or occupancy of the Work by Canada shall constitute an acceptance by Canada of any portion of the Work or Material that is not in accordance with the requirements of the Contract.
Claims and Obligations 5.8.1
The Contractor shall discharge all the Contractor's lawful obligations and shall satisfy all lawful claims against the Contractor arising out of the performance of the Work at least as often as the Contract requires Canada to pay the Contractor.
5.8.2
Whenever requested to do so by Canada, the Contractor shall make a statutory declaration declaring to the existence and condition of any obligations and claims against the Contractor arising out of the performance of the Work.
5.8.3
In order to discharge lawful obligations of and satisfy lawful claims against the Contractor or its Subcontractors arising out of the performance of the Contract, Canada may pay an amount that is due and payable to the Contractor directly to the claimant. Such payment is, to the extent of the payment, a discharge of Canada's liability to the Contractor under the Contract and may be deducted from any amount payable to the Contractor under the Contract.
5.8.4
For the purposes of paragraph 5.8.3 of GC5.8, and subject to paragraph 5.8.6 of GC5.8, a claim or obligation shall be considered lawful when it is so determined by .1 a court of legal jurisdiction; .2 an arbitrator duly appointed to arbitrate the claim; or .3 the written consent of the Contractor authorizing payment of the claim or obligation.
5.8.5
If a claim or obligation would have been subject to the provisions of Provincial or Territorial lien legislation or, in the Province of Quebec, the law relating to
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GENERAL CONDITIONS legal hypothecs had the Contractor been performing the Work for an entity other than Canada .1 such amount as may be paid by Canada pursuant to paragraphs 5.8.3 and 5.8.4 of GC5.8 shall not exceed the amount that the Contractor would have been obliged to pay had the provisions of such legislation or law been applicable to the Work; .2 a claimant need not comply with the provisions of such legislation, setting out the steps by way of notice, registration or otherwise as might have been necessary to preserve or perfect any claim for lien or privilege which the claimant might have had; and .3 for the purposes of determining the entitlement of a claimant, the notice required by paragraph 5.8 of GC5.8 shall be deemed to replace the registration or provision of notice after the performance of work as required by any applicable legislation and no claim shall be deemed to have expired, become void or unenforceable by reason of the claimant not commencing any action within the time prescribed by such legislation. 5.8.6
The Contractor shall, at the request of any claimant, submit to binding arbitration those questions that need to be answered to establish the entitlement of the claimant to payment. The arbitration shall have as parties to it any Subcontractor or Supplier to whom the claimant supplied Material, performed Work or rented equipment should such Subcontractor or Supplier wish to be adjoined, and Canada shall not be a party to such arbitration. Subject to any agreement between the Contractor and the claimant, the arbitration shall be conducted in accordance with the governing Provincial or Territorial legislation applicable to the site of the Work.
5.8.7
Paragraph 5.8.3 of GC5.8 shall apply only to claims and obligations .1 the notification of which has set forth the amount claimed to be owing and the person who by Contract is primarily liable and has been received by Canada in writing before final payment is made to the Contractor pursuant to GC5.6, "Final Completion", and within one-hundred and twenty (120) days of the date on which the claimant .1 should have been paid in full under the claimant's contract with the Contractor, its Subcontractor or Supplier if the claim is for money that was lawfully required to be held back from the claimant; or .2 performed the last of the services, Work or labour, or furnished the last of the Material pursuant to the claimant's contract with the Contractor or its Subcontractor or Supplier where the claim is for money not lawfully required to be held back from the claimant; and .2 the proceedings to determine the right to payment of which, pursuant to paragraph 5.8.5 of GC5.8, shall have commenced within one year from the date that the notification required by paragraph 5.8.7.1 of GC5.8 was received by Canada.
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GENERAL CONDITIONS
5.9
5.8.8
Upon receipt of a notice of claim, Canada may withhold, from any amount that is due and payable to the Contractor pursuant to the Contract, the full amount of the claim or any portion thereof.
5.8.9
Canada shall notify the Contractor in writing in a timely manner of receipt of any claim and of the intention of Canada to withhold funds. At any time thereafter and until payment is made to the claimant, the Contractor may be entitled to post, with Canada, security in a form acceptable to Canada in an amount equal to the value of the claim, and upon receipt of such security Canada shall release to the Contractor any funds that would be otherwise payable to the Contractor, that were withheld pursuant to the provisions of this clause in respect of the claim of any claimant for whom the security stands.
Right of Setoff 5.9.1
Without limiting any right of setoff or deduction given or implied by law or elsewhere in the Contract, Canada may set off any amount payable to Canada by the Contractor under the Contract, or under any current contract, against any amount payable to the Contractor under the Contract.
5.9.2
For the purposes of paragraph 5.9.1 of GC5.9, "current contract" means a contract between Canada and the Contractor .1 under which the Contractor has an undischarged obligation to perform or supply Work, labour or Material; or .2 in respect of which Canada has, since the date of the Contract, exercised any right to take the Work that is the subject of that contract out of the Contractor's hands.
5.10 Assessments and Damages for Late Completion 5.10.1
For the purposes of this clause .1 the Work shall be deemed to be completed on the date of the Final Certificate of Completion; and .2 the "period of delay" means the number of days commencing on the day fixed for completion of the Work and ending on the day immediately preceding the day on which the Work is completed but does not include any day within a period of extension granted pursuant to GC6.5, "Delays and Extension of Time", and any other day on which, in the opinion of the DCC Representative, completion of the Work was delayed for reasons beyond the control of the Contractor.
5.10.2
If the Contractor does not complete the Work by the day fixed for its completion but completes it thereafter, the Contractor shall pay Canada an amount equal to the aggregate of .1 all salaries, wages and travelling expenses incurred by Canada in respect of persons overseeing the performance of the Work during the period of delay;
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GENERAL CONDITIONS .2 the cost incurred by Canada as a result of the inability to use the completed Work for the period of delay; and .3 all other expenses and damages incurred or sustained by Canada during the period of delay as a result of the Work not being completed by the day fixed for its completion. 5.10.3
Canada may waive the right of Canada to the whole or any part of the amount payable by the Contractor pursuant to paragraph 5.10.2 of GC5.10 if, in the opinion of Canada, it is in the public interest to do so.
5.11 Delay in Making Payment 5.11.1
Notwithstanding GC1.5, "Time of the Essence", any delay by Canada in making any payment when it is due pursuant to GC5 shall not be a breach of the Contract by Canada.
5.11.2
Subject to paragraph 5.11.3 of GC5.11, Canada shall pay to the Contractor simple interest at the Average Bank Rate plus 3 percent per annum on any amount that is overdue pursuant to paragraph 5.1.3 of GC5.1, and the interest shall apply from and include the day such amount became overdue until the day prior to the date of payment.
5.11.3
Interest shall be paid without demand by the Contractor except that .1 in respect of amounts that are less than thirty (30) days overdue, no interest shall be paid in respect of payment made within such thirty (30) days unless the Contractor so demands after such amounts have become due and payable; and .2 interest shall not be payable or paid on overdue advance payments, if any.
5.12 Interest on Settled Claims 5.12.1
For the purposes of this clause, a claim means a disputed amount subject to negotiation between Canada and the Contractor under the Contract.
5.12.2
A claim is deemed to have been settled when an agreement in writing is signed by Canada and the Contractor setting out the amount of the claim to be paid by Canada and the items of Work for which the said amount is to be paid.
5.12.3
A settled claim is deemed to be outstanding from the day immediately following the date the said claim would have been due and payable under the Contract had it not been disputed.
5.12.4
Canada shall pay to the Contractor simple interest on the amount of a settled claim at the Average Bank Rate plus 3 percent per annum from the date the settled claim was deemed to be outstanding until the day prior to the date of payment.
5.13 Return of Security Deposit 5.13.1
After an Interim Certificate of Completion has been issued, and if the Contractor is not in breach of nor in default under the Contract, Canada shall
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GENERAL CONDITIONS return to the Contractor all or any part of a Security Deposit that, in the opinion of the DCC Representative, is not required for the purposes of the Contract. 5.13.2
After a Final Certificate of Completion has been issued, the DCC Representative shall return to the Contractor the remainder of any security deposit unless the Contract stipulates otherwise.
5.13.3
If the security deposit was paid into the Consolidated Revenue Fund of Canada, Canada shall pay interest thereon to the Contractor at a rate established pursuant to section 21(2) of the Financial Administration Act.
GC6 – DELAYS AND CHANGES IN THE WORK 6.1
6.2
Changes in the Work 6.1.1
At any time before issuance of a Final Certificate of Completion, the DCC Representative may issue orders for additions, deletions or other changes to the Work, or changes in the location or position of the whole or any part of the Work, if the addition, deletion, change or other revision is deemed by the DCC Representative to be consistent with the general intent of the Contract.
6.1.2
An order referred to in paragraph 6.1.1 of GC6.1 shall be in writing and given to the Contractor in accordance with GC2.3, "Notices".
6.1.3
Upon receipt of an order, the Contractor shall promptly perform the Work in accordance with the order as if the order had appeared in and been part of the original Contract.
6.1.4
If anything done or omitted by the Contractor pursuant to an order increases or decreases the cost of the Work to the Contractor, payment for the Work shall be made in accordance with GC6.4, "Determination of Price".
Changes in Subsurface Conditions 6.2.1
If, during the performance of the Work, the Contractor encounters subsurface conditions that are substantially different from the subsurface conditions described in the tender documents supplied to the Contractor, or a reasonable assumption of fact based thereon, the Contractor shall give notice to Canada immediately upon becoming aware of the situation.
6.2.2
If the Contractor is of the opinion that the Contractor may incur or sustain any extra expense or any loss or damage that is directly attributable to the changed subsurface conditions, the Contractor shall within ten (10) days of the date the changed subsurface conditions were encountered, give Canada written notice of intention to claim for that extra expense, loss or damage.
6.2.3
If the Contractor has given a notice referred to in paragraph 6.2.2 of GC6.2, the Contractor shall give Canada a written claim for extra expense, loss or damage no later than thirty (30) days after the date that an Interim Certificate of Completion is issued.
6.2.4
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GENERAL CONDITIONS of the claim to enable Canada to determine whether or not the claim is justified, and the Contractor shall supply such further and other information for that purpose as Canada requires.
6.3
6.2.5
If Canada determines that a claim referred to in paragraph 6.2.3 of GC6.2 is justified, Canada shall make an extra payment to the Contractor in an amount that is calculated in accordance with GC6.4, "Determination of Price".
6.2.6
If, in the opinion of Canada, the Contractor effects a saving of expenditure that is directly attributable to a substantial difference between the information relating to subsurface conditions at the site of the Work that is contained in the tender documents, or a reasonable assumption of fact based thereon, and the actual subsurface conditions encountered by the Contractor, the Contract Amount shall be reduced by the amount of the saving of expenditure determined in accordance with GC6.4, "Determination of Price".
6.2.7
If the Contractor fails to give a notice referred to in paragraph 6.2.2 of GC6.2 and a claim referred to in paragraph 6.2.3 of GC6.2 within the times stipulated, an extra payment shall not be made to the Contractor in respect of the occurrence.
6.2.8
Canada does not warrant the content expressed in any subsurface report available for the perusal of the Contractor that does not form part of the tender and Contract documents.
Human Remains, Archaeological Remains and Items of Historical or Scientific Interest 6.3.1
For the purposes of this clause .1 "human remains" means the whole or any part of a deceased human being, irrespective of the time of death; .2 "archaeological remains" are items, artefacts or things made, modified or used by human beings in antiquity and may include, but not be limited to, stone, wood or iron structures or monuments, dump deposits, bone artefacts, weapons, tools, coins, and pottery; and .3 "items of historical or scientific interest" are naturally occurring or manufactured objects or things of any age that are not archaeological remains but may be of interest to society because of their historical or scientific significance, value, rarity, natural beauty, or other quality.
6.3.2
If, during the course of the Work, the Contractor encounters any object, item or thing which is described in paragraph 6.3.1 of GC6.3 or which resembles any object, item or thing described in paragraph 6.3.1 of GC6.3, the Contractor shall .1 take all reasonable steps, including stopping Work in the affected area, to protect and preserve the object, item or thing; .2 immediately notify the DCC Representative of the circumstances in writing; and
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GENERAL CONDITIONS .3 take all reasonable steps to minimize additional costs that may accrue as a result of any work stoppage.
6.4
6.3.3
Upon receipt of a notification in accordance with paragraph 6.3.2.2 of GC6.3, Canada shall promptly determine whether the object, item or thing is one described in, or contemplated by paragraph 6.3.1 of GC6.3, and the DCC Representative shall notify the Contractor in writing of any action to be performed, or Work to be carried out, by the Contractor as a result of Canada's determination.
6.3.4
Canada may, at any time, enlist the services of experts to assist in the investigation, examination, taking of measurements or other such recordings, placing of permanent protection around or removing of the object, item or thing encountered by the Contractor, and the Contractor shall, to the satisfaction of Canada, allow them access and co-operate with them in the carrying out of their duties and obligations.
6.3.5
Human remains, archaeological remains and items of historical or scientific interest encountered at the site of the Work shall be deemed to be the property of Canada.
6.3.6
Except as may be otherwise provided for in the Contract, the provisions of GC6.4, "Determination of Price ", and GC6.5, "Delays and Extension of Time", shall apply.
Determination of Price 6.4.1
Price Determination Prior to Undertaking Changes .1 If a Lump Sum Arrangement applies to the Contract or a part thereof, the price of any change shall be the aggregate estimated cost of labour, Plant and Material that is required for the change as agreed upon in writing by the Contractor and Canada plus an allowance for supervision, co-ordination, administration, overhead, margin and the risk of undertaking the Work within the stipulated amount, which allowance shall be equal to .1 20% of the aggregate costs referred to herein for that portion of the Work done by the Contractor’s own forces, if the aggregate cost of the Work does not exceed $50,000; .2 15% of the aggregate costs referred to herein for that portion of the Work that is done by subcontract, if the aggregate cost of the Work does not exceed $50,000; or .3 a negotiated percentage of the aggregate costs referred to herein or a negotiated amount .1 if the aggregate cost of the Work exceeds $50,000; or .2 if the Contractor and the DCC Representative agree in writing. .2 If a Unit Price Arrangement applies to the Contract or a part thereof, the Contractor and the DCC Representative may, by agreement in writing, add
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GENERAL CONDITIONS items, units of measurement, estimated quantities and prices per unit to the Unit Price Table. .3 A price per unit referred to in paragraph 6.4.1.2 of GC6.4.1 shall be determined on the basis of the aggregate estimated cost of labour, Plant and Material that is required for the additional item as agreed upon by the Contractor and the DCC Representative, plus an allowance determined in accordance with paragraph 6.4.1.1 of GC6.4.1. .4 To facilitate approval of the price of the change or the additional price per unit as applicable, the Contractor shall submit a cost estimate breakdown identifying, as a minimum, the estimated cost of labour, Plant, Material, each subcontract Amount, and the amount of the allowance. .5 If no agreement is reached as contemplated in paragraph 6.4.1.1 of GC6.4.1, the price shall be determined in accordance with GC6.4.2. .6 If no agreement is reached, as contemplated in paragraphs 6.4.1.2 and 6.4.1.3 of GC6.4.1, the DCC Representative shall determine the class and the unit of measurement of the item of labour, Plant or Material and the price per unit shall be determined in accordance with GC6.4.2. 6.4.2
Price Determination Following Completion of Changes .1 If it is not possible to predetermine, or if there is failure to agree upon the price of a change in the Work, the price of the change shall be equal to the aggregate of .1 all reasonable and proper amounts actually expended or legally payable by the Contractor in respect of the labour, Plant and Material that fall within one of the classes of expenditure described in paragraph 6.4.2.2 of GC6.4.2, that are directly attributable to the performance of the Contract; .2 an allowance for profit and all other expenditures or costs, including overhead, general administration costs, financing and interest charges, in an amount that is equal to 10% of the sum of the expenses referred to in paragraph 6.4.2.1.1 of GC6.4.2; and .3 interest on the amounts determined under paragraphs 6.4.2.1.1 and 6.4.2.1.2 of GC6.4.2 calculated in accordance with GC5.12, "Interest on Settled Claims; .2 The cost of labour, Plant and Material referred to in paragraph 6.4.2.1.1 of GC6.4.2 shall be limited to the following categories of expenditure: .1 payments to Subcontractors and Suppliers; .2 wages, salaries, bonuses and, if applicable, travel and lodging expenses of employees of the Contractor located at the site of the Work and that portion of wages, salaries, bonuses and, if applicable, travel and lodging expenses of personnel of the Contractor generally employed at the head office or at a general office of the Contractor
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GENERAL CONDITIONS provided they are actually and properly engaged on the Work under the Contract; .3 assessments payable under any statutory authority relating to workers' compensation, employment insurance, pension plan or holidays with pay, provincial health or insurance plans, environmental reviews, and GST/HST collection costs; .4 rent that is paid for Plant, or an amount equivalent to the said rent if the Plant is owned by the Contractor, that is necessary for and used in the performance of the Work, if the rent or the equivalent amount is reasonable and use of that Plant has been approved by the DCC Representative; .5 payments for maintaining and operating Plant necessary for and used in the performance of the Work, and payments for effecting repairs thereto that, in the opinion of the DCC Representative, are necessary for the proper performance of the Contract, other than payments for any repairs to the Plant arising out of defects existing before its allocation to the Work; .6 payments for Material that is necessary for and incorporated in the Work, or that is necessary for and consumed in the performance of the Contract; .7 payments for preparation, delivery, handling, erection, installation, inspection, protection and removal of the Plant and Material necessary for and used in the performance of the Contract; and .8 any other payments made by the Contractor with the approval of the DCC Representative that are necessary for the performance of the Contract in accordance with the Contract Documents. 6.4.3
Price Determination – Variations in Tendered Quantities .1 Except as provided in paragraphs 6.4.3.2, 6.4.3.3, 6.4.3.4 and 6.4.3.5 of GC6.4.3, if it appears that the final quantity of labour, Plant and Material under a price per unit item shall exceed or be less than the estimated tendered quantity, the Contractor shall perform the Work or supply the Plant and Material required to complete the item and payment shall be made for the actual Work performed or Plant and Material supplied at the price per unit set out in the Contract. .2 If the final quantity of the price per unit item exceeds the estimated tendered quantity by more than 15%, either party to the Contract may make a written request to the other party to negotiate an amended price per unit for that portion of the item which exceeds 115% of the estimated tendered quantity, and to facilitate approval of any amended price per unit, the Contractor shall, on request, provide the DCC Representative with .1 detailed records of the actual cost to the Contractor of performing or supplying the tendered quantity for the price per unit item up to the time the negotiation was requested; and 40 of 63
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GENERAL CONDITIONS .2 the estimated unit cost of labour, Plant and Material required for the portion of the item that is in excess of 115% of the tendered quantity. .3 If agreement is not reached as contemplated in paragraph 6.4.3.2 of GC6.4.3, the price per unit shall be determined in accordance with GC6.4.2. .4 If it appears that the final quantity of labour, Plant and Material under a price per unit item shall be less than 85% of the estimated tendered quantity, either party to the Contract may make a written request to the other party to negotiate a change to the price per unit for the item if .1 there is a demonstrable difference between the unit cost to the Contractor of performing or supplying the estimated tendered quantity and the unit cost to the Contractor for performing or supplying the final quantity; and .2 the difference in unit cost is due solely to the decrease in quantity and not to any other cause. .5 For the purposes of the negotiation referred to in paragraph 6.4.3.4 of GC6.4.3 .1 the onus of establishing, justifying and quantifying a proposed change lies with the party making the request for negotiation; and .2 in no event shall the total price for an item that has been amended as a result of a reduction in quantity pursuant to paragraph 6.4.3.4 of GC6.4.3 exceed the amount that would have been payable to the Contractor had 85% of the tendered quantity actually been performed or supplied. 6.5
Delays and Extension of Time 6.5.1
Upon application of the Contractor made before the date first fixed for completion of the Work or before any other date previously fixed under this clause, Canada may extend the time for completion of the Work by fixing a new date if the DCC Representative determines that causes beyond the control of the Contractor have delayed its completion.
6.5.2
The Contractor's application shall be accompanied by the written consent of the bonding company whose bond forms part of the Contract Security.
6.5.3
Subject to paragraph 6.5.4 of GC6.5, no payment, other than a payment that is expressly stipulated in the Contract, shall be made by Canada to the Contractor for any extra expense, loss or damage incurred or sustained by the Contractor due to delay, whether or not the delay is caused by circumstances beyond the control of the Contractor.
6.5.4
If the Contractor incurs or sustains any extra expense or any loss or damage that is directly attributable to any neglect or delay that occurs after the date of the Contract on the part of Canada in providing any information or in doing any act that the Contract either expressly requires Canada to do or that would ordinarily be done by an owner in accordance with the practice of the trade, the 41 of 63
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GENERAL CONDITIONS Contractor shall give Canada written notice of intention to claim for that extra expense or loss or damage within ten (10) Working Days of the date the neglect or delay first occurred. 6.5.5
When the Contractor has given a notice referred to in paragraph 6.5.4 of GC6.5, the Contractor shall give Canada a written claim for the extra expense, loss or damage no later than thirty (30) days after the date that a Final Certificate of Completion is issued and not afterwards.
6.5.6
A written claim referred to in paragraph 6.5.5 of GC6.5 shall contain a sufficient description of the facts and circumstances of the occurrence that is the subject of the claim to enable Canada to determine whether or not the claim is justified and the Contractor shall supply such further and other information for that purpose as Canada may require.
6.5.7
If Canada determines that a claim referred to in paragraph 6.5.5 of GC6.5 is justified, Canada shall make an extra payment to the Contractor in an amount that is calculated in accordance with GC6.4, "Determination of Price".
6.5.8
If the Contractor fails to give a notice referred to in paragraph 6.5.4 and a claim referred to in paragraph 6.5.5 of GC6.5 within the times stipulated, an extra payment shall not be made to the Contractor in respect of the occurrence.
GC7 – DEFAULT, SUSPENSION OR TERMINATION OF CONTRACT 7.1
Taking the Work out of the Contractor's Hands 7.1.1
By giving notice in writing to the Contractor in accordance with GC2.3, "Notices", Canada, without any other authorization, may take all or any part of the Work out of the Contractor's hands, and may employ such means as Canada sees fit to have the Work completed if the Contractor .1 fails to remedy any delay in the commencement or default in the diligent performance of the Work to the satisfaction of Canada within six (6) days of Canada giving notice to the Contractor in writing in accordance with GC2.3, "Notices"; .2 defaults in the completion of any part of the Work within the time fixed for its completion by the Contract; .3 becomes insolvent, or has committed an act of bankruptcy, and has neither made a proposal to its creditors nor filed a notice of intention to make such a proposal, pursuant to the Bankruptcy and Insolvency Act; .4 abandons the Work; .5 makes an assignment of the Contract without the consent required by GC1.16, "Assignment", or .6 otherwise fails to observe or perform any of the provisions of the Contract.
7.1.2
If the whole or any part of the Work is taken out of the Contractor's hands, the Contractor's right to any further payment that is due or accruing due under the 42 of 63
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GENERAL CONDITIONS Contract is, subject only to paragraph 7.1.3 of GC7.1, extinguished, and the Contractor is liable to pay Canada, upon demand, an amount that is equal to the amount of all loss and damage incurred or sustained by Canada in respect of the Contractor's failure to complete the Work.
7.2
7.1.3
If the whole or any part of the Work that is taken out of the Contractor's hands is completed by Canada, Canada may pay the Contractor the amount, if any, of the holdback or a progress claim as determined by Canada that had accrued and was due prior to the date on which the Work was taken out of the Contractor's hands and that is not required for the purposes of having the Work performed or of compensating Canada for any other loss or damage incurred or sustained by reason of the Contractor's default.
7.1.4
The taking of the Work or any part thereof out of the Contractor's hands does not relieve the Contractor from any obligation under the Contract or imposed by law except the obligation to complete the performance of that part of the Work that was taken out of the Contractor's hands.
7.1.5
If the Work or any part thereof is taken out of the Contractor's hands, all Plant and Material and the interest of the Contractor, or its suppliers or subcontractors at any tier, in all real property, licences, powers and privileges acquired, used or provided by the Contractor, or its suppliers or subcontractors at any tier, under the Contract shall continue to be the property of Canada without compensation.
7.1.6
When Canada certifies that any Plant, Material, or any interest of the Contractor is no longer required for the purposes of the Work, or that it is not in the interests of Canada to retain that Plant, Material, or interest, it shall revert to the Contractor.
7.1.7
If the Contractor has become insolvent or has committed an act of bankruptcy, and has either made a proposal to its creditors or filed a notice of intention to make such a proposal, pursuant to the Bankruptcy and Insolvency Act, the Contractor shall immediately forward a copy of the proposal or the notice of intention to Canada.
Suspension of Work 7.2.1
When, in Canada's opinion, it is in the public interest to do so, Canada may require the Contractor to suspend performance of the Work either for a specified or an unspecified period, by the DCC Representative giving a notice of suspension in writing to the Contractor in accordance with GC2.3, "Notices".
7.2.2
When a notice of suspension is received by the Contractor, the Contractor shall suspend all operations in respect of the Work except those that the DCC Representative determines are necessary for the care and preservation of the Work, Plant and Material.
7.2.3
During a period of suspension, the Contractor shall not remove any part of the Work, Plant or Material from its site without the consent of the DCC Representative.
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GENERAL CONDITIONS
7.3
7.4
7.2.4
If a period of suspension is sixty (60) days or less, the Contractor shall resume the performance of the Work on the expiration of that period, and the Contractor is entitled to be paid the extra costs necessarily incurred by the Contractor as a result of the suspension, determined in accordance with GC6.4, "Determination of Price".
7.2.5
If a period of suspension is more than sixty (60) days, Canada and the Contractor may agree that the performance of the Work shall be continued by the Contractor, and the Contractor shall resume performance of the Work subject to any terms and conditions agreed upon by Canada and the Contractor. If Canada and the Contractor do not agree that performance of the Work shall be continued by the Contractor, or upon the terms and conditions under which the Contractor shall continue the Work, the notice of suspension shall be deemed to be a notice of termination pursuant to GC7.3, "Termination of Contract".
Termination of Contract 7.3.1
Canada may terminate the Contract at any time by the DCC Representative giving a notice of termination in writing to the Contractor in accordance with GC2.3, "Notices".
7.3.2
If the Contractor receives a notice of termination, the Contractor shall forthwith cease all operations in performance of the Contract, subject to any conditions stipulated in the notice.
7.3.3
Subject to paragraph 7.3.4 of GC7.3, if the Contract is terminated, Canada shall pay the Contractor an amount determined to be due to the Contractor pursuant to GC6.4, "Determination of Price", less the aggregate of all amounts that were paid to the Contractor by Canada and all amounts that are due to Canada from the Contractor pursuant to the Contract.
7.3.4
In no event shall the total amount payable by Canada to the Contractor exceed the amount, calculated in accordance with GC5, "Terms of Payment", that would have been payable to the Contractor had the Contractor completed the Work.
7.3.5
Payment to the Contractor, if any, shall be made as soon as practicable under the circumstances.
Security Deposit – Forfeiture or Return 7.4.1
If the Work is taken out of the Contractor's hands or the Contractor is in breach of, or in default under, the Contract, Canada may convert a security deposit to Canada's own use.
7.4.2
If Canada converts a security deposit, the amount realized shall be deemed to be an amount due from Canada to the Contractor under the Contract.
7.4.3
Any balance of the amount realized that remains after payment of all losses, damage and claims of Canada and others shall be paid by Canada to the Contractor if, in the opinion of Canada, it is not required for the purposes of the Contract. 44 of 63
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GENERAL CONDITIONS GC8 – DISPUTE RESOLUTION 8.1
Interpretation 8.1.1
In these Dispute Resolution, an "arbitral question of law" means a question of law that .1 is capable of determination by arbitration under the laws of Canada; .2 does not involve interpretation or application of public law of Canada, including without limitation any matter of constitutional, administrative, criminal or tax law; and .3 concerns .1 the formation, validity, interpretation, application or enforceability of the Contract; .2 the performance, breach, termination or other discharge of the Contract; .3 the rights, duties, obligations or remedies of parties created by or pursuant to the Contract; or .4 any other issue of private law that may arise between parties relative to performance of the Contract.
8.2
8.3
8.1.2
"dispute" means any disagreement regarding any issue identified by the Contractor in the notice submitted to Canada in accordance with paragraph 8.3.2 of GC8.3, "Notice of Dispute", and includes any claim by the Contractor arising from such disagreement and any counterclaim by Canada, but does not include any claim by either party for punitive or exemplary damages, injury to persons, death, or any claim based on an allegation of libel or slander; and
8.1.3
The alternative dispute resolution procedures set out in GC8, do not apply to any claim by Canada against the Contractor except any counterclaim in a dispute as defined in paragraph 8.1.2 of GC8.1, including, but not limited to, any claim of setoff regarding any amount due to Canada under GC5.10, "Assessment and Damages for Late Completion".
Consultation and Co-operation 8.2.1
The parties agree to maintain open and honest communication throughout the performance of the Contract.
8.2.2
The parties agree to consult and co-operate with each other in the furtherance of the Work and the resolution of problems or differences that may arise.
Notice of Dispute 8.3.1
Any difference between the parties to the Contract of any nature arising out of or in connection with the Contract which could result in a claim by the Contractor against Canada, and which is not settled by consultation and cooperation as envisaged in GC8.2, "Consultation and Co-operation", shall be resolved in the first instance by Canada, whose written decision or direction 45 of 63
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GENERAL CONDITIONS shall be final and binding subject only to the provisions of GC8. Such written decision or direction includes, but is not limited to, any written decision or direction by Canada under any provision of the General Conditions.
8.4
8.3.2
The Contractor shall be deemed to have accepted the decision or direction of Canada referred to in paragraph 8.3.1 of GC8.3 and to have expressly waived and released Canada from any claim in respect of the particular matter dealt with in that decision or direction unless, within fifteen (15) Working Days after receipt of the decision or direction, the Contractor submits to Canada a written notice of dispute requesting formal negotiation under GC8.4, "Negotiation". Such notice shall refer specifically to GC8.4, "Negotiation", and shall specify the issues in contention and the relevant provisions of the Contract.
8.3.3
The giving of a written notice in accordance with paragraph 8.3.2 of GC8.3 shall not relieve the Contractor from complying with the decision or direction that is the subject of the dispute. Such compliance, however, shall not be construed as an admission by the Contractor of the correctness of such decision or direction.
8.3.4
If a dispute is not resolved promptly, Canada shall give such instructions as, in Canada's opinion, are necessary for the proper performance of the Work and to prevent delays pending a resolution of the matter. Unless Canada terminates the Contract, orders the Contractor to suspend the Work, or takes the Work out of the hands of the Contractor, the Contractor shall continue to perform the Work in accordance with the provisions and requirements of the Contract and the instructions of Canada. Such performance shall not prejudice any claim that the Contractor may have.
8.3.5
Nothing in GC8 relieves the Contractor from its obligation to provide any other notice required by the Contract within the time specified in the Contract, including but not limited to, any notice required under GC6.2, "Changes in Subsurface Conditions".
Negotiation 8.4.1
Within ten (10) Working Days after receipt by Canada of a notice referred to in paragraph 8.3.2 of GC8.3, "Notice of Dispute", or within such other period of time as may be mutually agreed to, the parties shall commence formal negotiations in order to resolve the dispute. Negotiations shall occur initially between representatives of the Contractor and Canada who play a direct supervisory role in the performance, administration or management of the Contract.
8.4.2
If the representatives referred to in paragraph 8.4.1 of GC8.4 are unable to resolve some or all of the issues which are the subject of the negotiations within ten (10) Working Days, the parties shall refer the remaining issues which are in dispute to a second level of negotiation between a principal or principals of the Contractor and a senior level manager or senior level managers representing Canada.
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GENERAL CONDITIONS
8.5
8.4.3
If negotiations fail to resolve the dispute within thirty (30) Working Days from the date of delivery of the notice referred to in paragraph 8.3.2 of GC8.3, "Notice of Dispute", or within such longer period as may have been agreed to by the parties, the Contractor may, by giving written notice to Canada, in accordance with GC2.3, "Notices", within ten (10) Working Days from the end of such period, request that mediation be undertaken to assist the parties to reach agreement on the outstanding issues.
8.4.4
If the Contractor does not request mediation within the period permitted by paragraph 8.4.3 of GC8.4, the Contractor shall be deemed to have accepted the decision or direction of Canada under paragraph 8.3.1 of GC8.3, "Notice of Dispute", and to have expressly waived and released Canada from any claim in respect of the particular matter dealt with in that decision or direction.
Mediation 8.5.1
If the Contractor has requested mediation in accordance with paragraph 8.4.3 of GC8.4, "Negotiation", mediation shall be conducted in accordance with GC8.10, "Rules for Mediation of Disputes".
8.5.2
If a Project Mediator has not previously been appointed for the purposes of the Contract, a Project Mediator shall be appointed in accordance with GC8.10, "Rules for Mediation of Disputes", forthwith after delivery of a notice in accordance with paragraph 8.4.3 of GC8.4, "Negotiation", requesting mediation.
8.5.3
If the dispute has not been resolved within .1 ten (10) Working Days following the appointment of a Project Mediator in accordance with paragraph 8.5.2 of GC8.5, if a Project Mediator was not previously appointed; .2 ten (10) Working Days following receipt by Canada of a written notice in accordance with paragraph 8.4.3 of GC8.4, "Negotiation", if a Project Mediator was previously appointed; or .3 such other longer period as may have been agreed to by the parties; the Project Mediator shall terminate the mediation by giving written notice to the parties stating the effective date of termination.
8.6
Binding Arbitration 8.6.1
If mediation of the dispute is terminated pursuant to the provisions of GC8.5, "Mediation", and .1 the termination of mediation occurs prior to the applicable date set out in 8.6.4 of GC8.6; and .2 the disputed issues involve issues of fact or issues of arbitral questions of law or issues of mixed fact and arbitral questions of law; either party, by giving notice in writing to the other party in accordance with GC2.3, "Notices", may request that the dispute be resolved by binding arbitration
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GENERAL CONDITIONS pursuant to GC8.6. Binding arbitration will only proceed if both parties have agreed to it. 8.6.2
A notice referred to in 8.6.1 of GC8.6 shall be given within 10 working days of the date of termination of mediation under GC8.5 “Mediation” and shall be in accordance with GC2.3, "Notices".
8.6.3
If no notice is given within the period set out in 8.6.2 of GC8.6, or if the conditions set out in 8.6.1.1 and 8.6.1.2 of GC8.6 are not met, the arbitration provisions set out in GC8.6 do not apply to the dispute.
8.6.4
Unless otherwise agreed, the arbitration of the dispute shall be held in abeyance until the earlier of .1 the date of issuance of an Interim Certificate of Completion under GC5.5, "Substantial Completion of the Work"; .2
the date the Work is taken out of the Contractor's hands; and
.3 the date of termination of the Contract; and consolidated with all other such disputes into a single arbitration.
8.7
8.6.5
Arbitral proceedings under this GC8.6 shall be governed by and conducted in accordance with the Commercial Arbitration Act, R.S. 1985, c. 17 (2nd Supp.) and the provisions of GC8.11, "Rules for Arbitration of Disputes".
8.6.6
For the purposes of calculating time under the Rules for Arbitration referred to in 8.6.5 of GC8.6, arbitration proceedings shall commence on the applicable date set out in 8.6.4 of GC8.6.
8.6.7
Notwithstanding anything else contained in GC8.6, the arbitration provisions in GC8.6 do not apply if the aggregate amount of all claims by the Contractor required to be arbitrated on the applicable date set out in 8.6.4 of GC8.6 is less than $25,000.
Disputes not Subject to Arbitration 8.7.1
Where the arbitration provisions in GC8.6, "Binding Arbitration", do not apply to a dispute as a result of 8.6.3 or 8.6.7 of GC8.6, "Binding Arbitration", either party may take such court action or proceedings as it considers appropriate, including, without limiting the foregoing, all suits that would otherwise have been immediately available to it but for the provisions of these Dispute Resolution Conditions. Subject to the provisions of 8.7.2 of GC8.7, the Contractor shall initiate any such action or proceeding no later than three calendar months after the date that a Final Certificate of Completion is issued under GC5.6, "Final Completion", and not afterwards, except where it is otherwise provided by law.
8.7.2
Any action or proceeding resulting from a direction under GC3.13, "Warranty and Rectification of Defects in Work", shall be initiated by the Contractor no later than three calendar months after the expiry of the warranty or guarantee period and not afterwards, except where it is otherwise provided by law.
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GENERAL CONDITIONS 8.8
Confidentiality 8.8.1
8.9
All information exchanged during alternative dispute resolution procedures, by whatever means, shall be without prejudice and shall be treated as confidential by the parties and their representatives, unless otherwise required by law. However, evidence that is independently admissible or discoverable shall not be rendered inadmissible or non-discoverable by virtue of its use during an alternative dispute resolution process.
Settlement 8.9.1
Any agreement to settle all or any part of a dispute, by whatever means, shall be in writing and be signed by the parties or their authorized representatives.
8.10 Rules for Mediation of Disputes 8.10.1
Interpretation
In these Rules .1 "Coordinator" means the person designated by Canada to act as the Dispute Resolution Coordinator. 8.10.2
Application .1 By mutual agreement, the parties may change or make additions to the Rules.
8.10.3
Communication .1 Written communications pursuant to these Rules shall be given in accordance with GC2.3, "Notices".
8.10.4
Appointment of Project Mediator .1 The parties to the Contract may, by mutual consent, at any time after entry into the Contract, appoint a mediator (the "Project Mediator") to conduct mediation proceedings in accordance with these Rules for Mediation of Disputes, in regard to any dispute that may arise with regard to the interpretation, application or administration of the Contract. In this case, they shall jointly enter into a contract with the appointed Project Mediator, which contract shall be in a form drafted by the Coordinator and agreed to by the parties. .2 If the parties do not appoint a Project Mediator pursuant to paragraph 8.10.4.1 of GC8.10.4, the parties shall appoint a Project Mediator within seventeen (17) Working Days following receipt of a written notice from the Contractor, in accordance with GC2.3, "Notices", requesting that mediated negotiations be undertaken in accordance with these Rules to assist the parties to reach agreement on any outstanding issues that may be in dispute. Any contract entered into with the appointed Project Mediator shall meet the requirements as set out for the contract described in paragraph 8.10.4.1 of GC8.10.4.
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GENERAL CONDITIONS .3 When mediation is requested by the Contractor pursuant to paragraph 8.4.3 of GC8.4, "Negotiation", if the parties have previously entered into a contract with a Project Mediator, the parties shall within two (2) days send to both the Project Mediator and the Coordinator .1 a copy of the notice requesting negotiation under paragraph 8.3.2 of GC8.3, "Notice of Dispute"; .2 a copy of Canada's written position in relation to the notice, the issues in contention and the relevant provisions of the Contract; and .3 a copy of the Contractor's written request for mediation required under paragraph 8.4.3 of GC8.4, "Negotiation". .4 If the parties have not agreed on a Project Mediator, the parties shall forthwith provide the Coordinator with the written materials referred to in paragraphs 8.10.4.3.1, 8.10.4.3.2 and 8.10.4.3.3 of GC8.10.4 together with a request that the Coordinator assist in the appointment of a mutually acceptable Project Mediator in accordance with these Rules. .5 Within five (5) Working Days following receipt of the request and materials referred to in paragraph 8.10.4.4 of GC8.10.4, the Coordinator shall provide the parties with a list of qualified private sector mediators obtained from an independent and impartial entity, together with instructions to each party to individually and confidentially select and rank their preferred and fully acceptable choices of mediator in descending order. Each mediator listed shall be impartial and independent of the parties, and shall be an experienced and skilled commercial mediator, preferably with knowledge of the subject matter of the dispute. .6 Within ten (10) Working Days of receipt of the list referred to in paragraph 8.10.4.5 of GC8.10.4 each party shall comply with the instructions accompanying the list(s) and shall deliver the completed listing to the Coordinator. .7 Within two (2) Working Days following receipt of the completed listings, the Coordinator shall select the highest common ranked mediator to act as Project Mediator for the purposes of the Contract. .8 In the event of a tie, the Coordinator shall consult both parties to reevaluate their rankings in order to assist the Coordinator in selecting a Project Mediator acceptable to both parties. If the parties cannot agree upon a Project Mediator, the Coordinator shall forthwith provide the parties with a second list of mediators and the procedure shall be repeated. .9 If the parties have not previously entered into a contract with a mutually acceptable Project Mediator, the Coordinator shall use reasonable efforts to negotiate a contract with a mutually acceptable Project Mediator on behalf of the parties, which contract shall incorporate or otherwise comply with the provisions of these Rules. If negotiations are unsuccessful, or if for other reason the individual is unwilling or unable to enter into a contract to act as
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GENERAL CONDITIONS Project Mediator, the Coordinator shall repeat the process with the secondhighest common ranked mediator. .10 The parties agree that, upon successful completion of the negotiations referred to in paragraph 8.10.4.9 of GC8.10.4, they shall jointly enter into a contract with the selected Project Mediator, which contract shall be in a form drafted by the Coordinator and agreed to by the parties. .11 Upon execution of the contract with the Project Mediator referred to in paragraph 8.10.4.10 of GC8.10.4 the Coordinator shall provide the Project Mediator with copies of the documents referred to in paragraph 8.10.4.3 of GC8.10.4. 8.10.5
Confidentiality .1 Subject to paragraph 8.10.5.2 of GC8.10.5, and unless otherwise agreed in writing by the parties, the Project Mediator, the parties and their counsel or representatives shall keep confidential all matters and documents disclosed during mediation proceedings except where the disclosure is necessary for any implementation of any agreement reached or is required by law. .2 Evidence that is independently admissible or discoverable in any arbitral or judicial proceeding shall not be rendered inadmissible or non-discoverable by virtue of its use in mediation proceedings. .3 Neither party shall make transcripts, minutes or other records of a mediation conference. .4 The personal notes and written opinions of the Project Mediator made in relation to mediation are in the Project Mediator's sole possession and control, are confidential, and may not be used in any subsequent proceeding between the parties or where they are opposed in interest without the express written permission of the parties. .5 All information exchanged during mediation procedures, by whatever means, shall be without prejudice and shall be treated as confidential by the parties and their representatives, unless otherwise required by law.
8.10.6
Time and Place of Mediation .1 The Project Mediator, in consultation with the parties shall set the date, time and place of any mediation conference as soon as possible, bearing in mind that, subject to agreement to the contrary between the parties, only ten (10) Working Days are available within which to attempt to settle the dispute.
8.10.7
Representation .1 Representatives of the parties may be accompanied at the mediation conference by legal counsel or any other person. .2 If the Project Mediator is a lawyer, the Project Mediator shall not provide legal advice to a party during the course of the mediation conference, but
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GENERAL CONDITIONS may recommend that a party obtain independent legal advice before finalizing a settlement agreement. 8.10.8
Procedure .1 The parties agree to an exchange of all facts, information and documents upon which they intend to rely in any oral or written presentation during the mediation. This exchange shall be completed no later than two (2) Working Days prior to the date set for a mediation conference. .2 The Project Mediator shall be free to meet with the parties individually during a mediation conference if the Project Mediator is of the opinion that this may improve the chances of a mediated settlement, and either party may request such an individual meeting at any time. .3 The parties may agree to extend the ten (10) Working Days available for settlement of the dispute through mediation, and the Project Mediator shall record that agreement in writing.
8.10.9
Settlement Agreement .1 The parties shall record in writing any settlement agreement reached, with sufficient detail to ensure a clear understanding of .1 the issues resolved; .2 any obligations assumed by each party including criteria to determine if and when these obligations have been met; and .3 the consequences of failure to comply with the agreement reached. .2 The parties agree to carry out the terms of a settlement agreement as soon as possible and, in any event, within any time periods specified in the agreement.
8.10.10 Termination of Mediation .1 Either party may withdraw from mediation at any time without reason and, in that event, the Project Mediator shall give each party a written notice terminating the mediation and establishing the effective date of termination. .2 If, in the opinion of the Project Mediator, either party fails to mediate in good faith or fails to comply with the terms of these Rules, or if the Project Mediator, at any time during mediation, is of the opinion that further negotiations will fail to resolve the issues outstanding, the Project Mediator may terminate the negotiations by providing the parties with a written notice of termination, stating therein the Project Mediator's reasons for the termination, and the effective date of termination. .3 If a dispute has not been resolved within ten (10) Working Days or such other longer period as may have been agreed to by the parties, the Project Mediator shall terminate the mediation by giving written notice to the parties stating the effective date of termination. 8.10.11 Costs 52 of 63
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GENERAL CONDITIONS .1 The parties agree that they will each be responsible for the costs of their own representatives and advisors and associated travel and living expenses. Fees and expenses of the Project Mediator and all administrative costs of mediation, such as the cost of the meeting room(s), if any, shall be borne equally by the parties. 8.10.12 Subsequent Proceedings .1 The parties shall not rely on or introduce as evidence in any arbitral or judicial proceeding, whether or not such proceeding relates to the subject matter of mediation, .1 any documents of other parties that are not otherwise producible in those proceedings; .2 any views expressed or suggestions made by any party in respect of a possible settlement of issues; .3 any admission made by any party in the course of mediation unless otherwise stipulated by the admitting party; and .4 the fact that any party has indicated a willingness to make or accept a proposal or recommendation for settlement. .2 The Project Mediator shall neither represent nor testify on behalf of either of the parties in any subsequent investigation, action or proceeding relating to the issues in mediation proceedings. .3 The Project Mediator shall not be subpoenaed to give evidence relating to .1 the Project Mediator's role in mediation; or .2 the matters or issues in mediation; .3 in any subsequent investigation, action or proceeding and the parties agree to vigorously oppose any effort to have the Mediator so subpoenaed. 8.11 Rules for Arbitration of Disputes 8.11.1
Interpretation .1 In these Rules "claimant" means the Contractor; "Coordinator" means the person designated by Canada to act as the Dispute Resolution Coordinator" "respondent" means Canada.
8.11.2
Arbitration Tribunal .1 Subject to these Rules, and unless otherwise agreed by the parties, the arbitration tribunal shall consist of a single arbitrator ("the Tribunal") who shall be appointed in accordance with the provisions of the Rules.
8.11.3
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GENERAL CONDITIONS .1 By mutual agreement, the parties may change or make additions to the Rules. .2 The scope of the arbitral proceedings shall be limited to the resolution of the dispute submitted to arbitration. .3 The dispute shall be subject to resolution pursuant to the provisions of these Rules whether or not such resolution requires determination of a question of law if such question of law is an arbitral question of law as defined in the terms and conditions of the Contract. .4 Arbitral proceedings shall be governed by and in accordance with the Commercial Arbitration Act, R.S. 1985, c. 17 (2nd Supp.), the Code referred to therein, and the provisions of these Rules, and, subject only to the provisions of the Commercial Arbitration Act, the parties agree that the determination and award of the Tribunal shall be final and binding on both parties. .5 The Tribunal shall not decide the dispute ex aequo et bono or as amiable compositeur. .6 The Tribunal shall decide in accordance with the terms and conditions of the Contract and shall take into account the usage of the trade applicable to the transaction. .7 The costs of the Tribunal and the arbitration shall be shared equally by the parties and each party shall bear its own costs. 8.11.4
Initiation of Proceedings .1 Either party may submit a dispute to binding arbitration pursuant to GC8.6, "Binding Arbitration", by giving notice in writing to the other party in accordance with GC2.3, "Notices". .2 The notice referred to in 8.11.4.1 of GC8.11.4 shall contain the following: .1 a brief description of the Contract; .2 a statement of the issue(s) in dispute; .3 a request that the dispute be referred to binding arbitration; and .3 A copy of the notice referred to in 8.11.4.1 of GC8.11.4 shall be given to the Coordinator at the same time it is given to the other party. .4 Unless otherwise agreed, the arbitration of the dispute shall be held in abeyance and consolidated with all other such disputes into a single arbitration in accordance with 8.6.4 of GC8.6, "Binding Arbitration".
8.11.5
Appointment of Tribunal .1 No later than 10 working days following the date of commencement of arbitration proceedings as set out in 8.6.6 of GC8.6, "Binding Arbitration", the Coordinator shall assemble and provide the parties with a list of qualified private sector arbitrators obtained from an independent and impartial entity, together with instructions to each party to individually and 54 of 63
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GENERAL CONDITIONS confidentially select and rank their preferred and fully acceptable choices of arbitrator in descending order. .2 Within 10 working days of receipt of the list referred to in 8.11.5.1 of GC8.11.5, each party shall comply with the instructions accompanying the list(s) and shall deliver the completed listing to the Coordinator. .3 Within 2 working days following receipt of the completed listings, the Coordinator shall select the highest common ranked arbitrator to act as the Tribunal for the purposes of the arbitration. .4 In the event of a tie, the Coordinator shall consult both parties to reevaluate their rankings in order to assist the Coordinator in selecting a single arbitrator acceptable to both parties. If the parties cannot agree upon an arbitrator, the Coordinator shall forthwith provide the parties with a second list of arbitrators and the procedure shall be repeated. .5 In the event that, following the repeated procedure, the Coordinator again fails to select a single arbitrator acceptable to both parties, the Tribunal shall consist of three (3) arbitrators, one arbitrator appointed by each of the parties and the third arbitrator appointed by these two (2) arbitrators. .6 The Tribunal shall in any event be composed of a person or persons who have experience in the subject matter of the dispute and are independent of either party. Without limiting the generality of the foregoing, the Tribunal shall be at arm's length from both parties and shall not be composed of members of any company, firm, or agency which advises either party, nor shall the Tribunal be composed of a person or persons who are otherwise regularly retained by such parties. .7 The parties agree that they shall jointly enter into an agreement with the selected Tribunal, which agreement shall be in a form drafted by the Coordinator and agreed to by the parties. .8 The parties agree that they shall each bear their own costs. Fees and reasonable expenses of the Tribunal and reasonable expenses associated with the conduct of the arbitration shall be borne equally by the parties. 8.11.6
Preliminary Meeting .1 Unless the parties to the arbitration and the Tribunal otherwise agree, the parties shall meet with the Tribunal within 10 working days of the Tribunal's appointment to .1 settle the location of premises for proceedings and responsibilities for the arrangement; .2 verify addresses for the delivery of written communications to each party and to the Tribunal; .3 present to the Tribunal the issues to be resolved by means of the arbitration;
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GENERAL CONDITIONS .4 estimate the length of time the hearing might take and the number of witnesses likely to be produced; .5 determine if a stenographic record or any other type of recording of proceedings should be kept, or if any particular services, such as interpreters, translations or security measures should be provided; and .6 determine any other matters pertinent to conduct of the arbitration. 8.11.7
Communications .1 Subject to 8.11.7.2 of GC8.11.7, the Tribunal shall not communicate with a party to the dispute except in the presence of the other party. .2 Notwithstanding 8.11.7.1 of GC8.11.7, the Tribunal may communicate with the parties separately for the purpose of establishing procedures to be followed or setting the time of a meeting; other exceptions to the general rule shall only be made with the consent in writing of all parties. .3 If a communication by the Tribunal to one party is in writing, a copy shall be sent to the other party. .4 If a party sends any written communication to the Tribunal, a copy shall be sent to the other party. .5 Any communication that is required or permitted to be given to the Tribunal or either party shall be in writing and may be given by delivering the same by facsimile, electronic mail or by mail, postage prepaid, to the address established for the purposes of the Contract in the case of the parties, and to the address provided by the Tribunal in the case of the Tribunal, and such communication shall be deemed to have been received in accordance with the provisions of GC2.3, "Notices".
8.11.8
Representation .1 The parties may be represented or assisted by any person during the arbitral proceedings.
8.11.9
Conduct of Proceedings .1 Subject to the provisions of these Rules, the Tribunal may conduct the arbitration in the manner it considers appropriate. The power conferred upon the Tribunal includes the power to determine the admissibility, relevance, materiality and weight of any evidence.
8.11.10 Place of Arbitration .1 The Tribunal may meet at any place it considers appropriate for hearing witnesses, experts or the parties, or for inspection of documents, goods or other property. The Tribunal shall conduct on-site inspections at the request of either party. Any on-site inspections shall be made in the presence of both parties and their representatives. The proceedings of any on-site inspections shall be recorded as part of the hearing itself.
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GENERAL CONDITIONS 8.11.11 Time Limitations .1 The Tribunal may extend or abridge a period of time required in these Rules or fixed or determined by the Tribunal where the Tribunal considers it to be reasonable and appropriate. .2 Where any proceeding is terminated pursuant to paragraph 25(a) or 32 (2)(a) of the Code referred to in the Commercial Arbitration Act, unless the respondent agrees otherwise in writing, such termination is deemed to be a final award dismissing the claim of the claimant. 8.11.12 Statement of Claim and Defence .1 Within 10 working days after the Tribunal has been appointed, the claimant shall state, in writing, the facts supporting its claim, points at issue and relief or remedy sought, and shall submit the statement to the respondent, the Coordinator, and the Tribunal. .2 Within 10 working days after receipt of the statement of claim, the respondent shall state, in writing, its defence in respect of these particulars and any counterclaim and shall submit its statement to the claimant, the Coordinator and the Tribunal. .3 Within 5 working days after receipt of the statement of defence, the claimant may state, in writing, its response to the defence and to any counterclaim, and shall submit its statement to the respondent, the Coordinator and the Tribunal. .4 A party may amend or supplement its statements during the course of arbitral proceedings unless the Tribunal considers it inappropriate to allow such amendment or supplement having regard to all circumstances including delay in making the amendment or supplement. .5 A statement may not be amended if the amended statement would fall outside the scope of the arbitration agreement. 8.11.13 Further Written Statements .1 The Tribunal may require or permit the presentation of further written statements by the parties and shall fix the periods of time for submitting those statements. 8.11.14 Agreed Statement of Facts .1 Within a time period specified by the Tribunal, the parties shall prepare and file with the Tribunal an agreed statement of facts including but not limited to a chronology of the project, schedules, quantities and progress payments. The Tribunal shall make itself available, upon reasonable notice, to assist the parties to arrive at agreement on as many facts as possible under the circumstances. .2 Within a time period specified by the Tribunal, the parties shall prepare and file with the Tribunal a common book of documents including all documents
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GENERAL CONDITIONS referred to in an agreed statement of facts and in statements of claim, defence and response. 8.11.15 Evidence .1 Each party shall prove the facts relied upon to support its claim or defence. .2 Each party shall deliver to the Tribunal and to the other party, within such period of time that the Tribunal determines, a copy of the documents and a summary of the other evidence that party intends to present in support of the facts in issue set out in its statement of claim, defence or response. .3 From time to time, the Tribunal may require the parties to produce documents, exhibits and other evidence within such period of time that the Tribunal may determine. 8.11.16 Hearings .1 All statements, documents or other information supplied to, or applications made to, the Tribunal by one party shall be communicated to the other party, and any expert report or evidentiary document on which the Tribunal may rely in making its decision shall be communicated to the parties at least 8 working days prior to its entry in evidence. .2 The parties shall be given reasonably sufficient advance notice of any hearing of the Tribunal and any meeting of the Tribunal for the purpose of inspection of documents, goods or other property. .3 If a party intends to give evidence through a witness, the party shall communicate to the Tribunal and to the other party, within such period that the Tribunal determines .1 the names, addresses and curriculum vitae of each of the witnesses it intends to present; and .2 the subject upon which those witnesses shall give their testimony. .4 Each party shall have the right to examine, cross-examine and re-examine all witnesses as appropriate. .5 All oral hearings and meetings in arbitral proceedings shall be held "in camera". 8.11.17 Default .1 Where, without showing sufficient cause, the claimant fails to communicate its statement of claim in accordance with these Rules or within such further period of time permitted by the Tribunal under these Rules, the Tribunal shall issue an order terminating the arbitral proceedings with respect to that claim. .2 An order made under 8.11.17.1 of GC8.11.17 does not affect a counterclaim made in respect of those arbitral proceedings. .3 Where, without showing sufficient cause, the respondent fails to communicate a statement of defence in accordance with these Rules, or 58 of 63
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GENERAL CONDITIONS within such further period of time permitted by the Tribunal under these Rules, the Tribunal shall continue the arbitral proceedings without treating that failure in itself as an admission of the claimant's allegations. .4 Where, without showing sufficient cause, a party fails to appear at an oral hearing or produce documentary evidence, the Tribunal may continue the arbitral proceedings and make the arbitral award on the evidence before it. 8.11.18 Arbitral Decision .1 Unless otherwise agreed to by the parties, the Tribunal shall make the award no later than 30 days after completion of the arbitration hearings unless that time period is extended for an express period by the Tribunal on written notice to each party, due to illness or other cause beyond the Tribunal's control. GC9 – CONTRACT SECURITY 9.1
9.2
Obligation to Provide Contract Security 9.1.1
The Contractor shall, at the Contractor's expense and within fourteen (14) days after the date that the Contractor receives notice that the Contractor's tender was accepted by Canada, obtain and deliver Contract Security to Canada in one of the forms prescribed in GC9.2, "Types and Amounts of Contract Security".
9.1.2
If the whole or a part of the Contract Security provided is in the form of a security deposit, it shall be held and disposed of in accordance with GC5.13, "Return of Security Deposit", and GC7.4, "Security Deposit – Forfeiture or Return".
9.1.3
If a part of the Contract Security provided is in the form of a labour and material payment bond, the Contractor shall post a copy of that bond at the site of the Work.
9.1.4
It is a condition precedent to the release of the first progress payment that the Contractor has provided the Contract Security as specified herein.
Types and Amounts of Contract Security 9.2.1
The Contractor shall deliver to the DCC Representative .1 a performance bond and a labour and material payment bond each in an amount that is equal to not less than 50% of the Contract Amount, or; .2 a security deposit or irrevocable standby letter of credit in an amount that is equal to not less than 20% of the Contract Amount.
9.2.2
A performance bond and a labour and material payment bond referred to in paragraph 9.2.1 of GC9.2 shall be in a form and be issued by a bonding or surety company that is approved by Canada. .1 The approved form for the Performance Bond is included in the DCL32 General Conditions. 59 of 63
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GENERAL CONDITIONS .2 The approved form for the Labour and Material Payment Bond is included in the DCL32 - General Conditions; and .3 The list of approved bonding or surety companies is displayed at the following Website: http://www.tbs-sct.gc.ca/pol/doceng.aspx?id=14494§ion=text#appL 9.2.3
A security deposit referred to in paragraph 9.2.1.2 of GC9.2 shall be in the form of .1 a bill of exchange, bank draft or money order made payable to the Receiver General for Canada and certified by an approved financial institution or drawn by an approved financial institution on itself; or .2 bonds of, or unconditionally guaranteed as to principal and interest by, the Government of Canada.
9.2.4
For the purposes of paragraph 9.2.4.1 of GC9.2 .1 a bill of exchange is an unconditional order in writing signed by the Contractor and addressed to an approved financial institution, requiring the said institution to pay, on demand, at a fixed or determinable future time a sum certain of money to, or to the order of, the Receiver General for Canada; .2 if a bill of exchange, bank draft or money order is certified by or drawn on an institution or corporation other than a chartered bank, it must be accompanied by proof that the said institution or corporation meets at least one of the criteria described in paragraph 9.2.5.3 of GC9.2, either by letter or by a stamped certification on the bill of exchange, bank draft or money; and .3 An approved financial institution is .1 a corporation or institution that is a member of the Canadian Payments Association as defined in the Canadian Payments Act; .2 a corporation that accepts deposits that are insured, to the maximum permitted by law, by the Canada Deposit Insurance Corporation or the "Régie de l'assurance-dépôts du Québec"; .3 a corporation that accepts deposits from the public if repayment of the deposit is guaranteed by Her Majesty the Queen in right of a province; .4 a corporation, association or federation incorporated or organized as a credit union or co-operative credit society that conforms to the requirements of a credit union which are more particularly described in paragraph 137(6) of the Income Tax Act; or .5 Canada Post Corporation.
9.2.5
Bonds referred to in paragraph 9.2.4.2 of GC9.2 shall be provided on the basis of their market value current at the date of the Contract, and shall be .1 made payable to bearer; or 60 of 63
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GENERAL CONDITIONS .2 accompanied by a duly executed instrument of transfer of the bonds to the Receiver General for Canada in the form prescribed by the Domestic Bonds of Canada Regulations; or .3 registered as to principal, or as to principal and interest, in the name of the Receiver General for Canada pursuant to the Domestic Bonds of Canada Regulations. 9.2.6
An irrevocable standby letter of credit referred to in paragraph 9.2.1 of GC9.2 shall .1 be an arrangement, however named or described, whereby a financial institution (the "Issuer") acting at the request and on the instructions of a customer (the "Applicant") or on its own behalf, .1 is to make a payment to, or to the order of, Canada as the beneficiary; .2 is to accept and pay bills of exchange drawn by Canada; .3 authorizes another financial institution to effect such payment or accept and pay such bills of exchange; or .4 authorizes another financial institution to negotiate against written demand(s) for payment provided that the terms and conditions of the letter of credit are complied with; .2 state the face amount that may be drawn against it; .3 state its expiry date; .4 provide for sight payment to the Receiver General for Canada by way of the financial institution's draft against presentation of a written demand for payment signed by Canada; .5 provide that more than one written demand for payment may be presented subject to the sum of those demands not exceeding the face value of the letter of credit; .6 must provide that it is subject to the International Chamber of Commerce (ICC) Uniform Customs and Practice (UCP) for Documentary Credits, 2007 Revision, ICC Publication No. 600. Pursuant to the ICC UCP, a credit is irrevocable even if there is no indication to that effect; and .7 be issued or confirmed, in either official language in a format left to the discretion of the issuer or confirmer, by an approved financial institution on its letterhead.
GC10 – INSURANCE 10.1 Insurance Contracts 10.1.1
The Contractor shall, at the Contractor's expense, obtain and maintain insurance contracts in respect of the Work and shall provide evidence thereof
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GENERAL CONDITIONS to the DCC Representative in accordance with the requirements of the "DCL243 - Insurance Conditions". 10.1.2
The insurance contracts referred to in paragraph 10.1.1 of GC10.1 shall .1 be in a form, of the nature, in the amounts, for the periods and containing the terms and conditions specified in " DCL243 - Insurance Conditions "; and .2 provide for the payment of claims under such insurance contracts in accordance with GC10.2, "Insurance Proceeds".
10.2 Insurance Proceeds 10.2.1
In the case of a claim payable under a Builders Risk/Installation (All Risks) insurance contract maintained by the Contractor pursuant to GC10.1, "Insurance Contracts", the proceeds of the claim shall be paid directly to Canada, and .1 the monies so paid shall be held by Canada for the purposes of the contract, or .2 if Canada elects, shall be retained by Canada, in which event they vest in Canada absolutely.
10.2.2
In the case of a claim payable under a General Liability insurance contract maintained by the Contractor pursuant to GC10.1, "Insurance Contracts", the proceeds of the claim shall be paid by the insurer directly to the claimant.
10.2.3
If an election is made pursuant to paragraph 10.2.1 of GC10.2, Canada may cause an audit to be made of the accounts of the Contractor and of Canada in respect of the part of the Work that was lost, damaged or destroyed for the purpose of establishing the difference, if any, between .1 the aggregate of the amount of the loss or damage suffered or sustained by Canada, including any costs incurred in respect of the clearing and cleaning of the Work and its site and any other amount that is payable by the Contractor to Canada under the contract, minus any monies retained pursuant to paragraph 10.2.1.2 of GC10.2; and .2 the aggregate of the amounts payable by Canada to the Contractor pursuant to the contract up to the date of the loss or damage.
10.2.4
A difference that is established pursuant to paragraph 10.2.3 of GC10.2 shall be paid forthwith by the party who is determined by the audit to be the debtor to the party who is determined by the audit to be the creditor.
10.2.5
When payment of a deficiency has been made pursuant to paragraph 10.2.4 of GC10.2, all rights and obligations of Canada and the Contractor under the contract shall, with respect only to the part of the Work that was the subject of the audit referred to in paragraph 10.2.3 of GC10.2, be deemed to have been expended and discharged.
10.2.6
If an election is not made pursuant to paragraph 10.2.1.2 of GC10.2, the Contractor shall, subject to paragraph 10.2.7.of GC10.2, clear and clean the 62 of 63
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GENERAL CONDITIONS Work and its site and restore and replace the part of the Work that was lost, damaged or destroyed at the Contractor's expense as if that part of the Work had not yet been performed. 10.2.7
When the Contractor clears and cleans the Work and its site and restores and replaces the Work referred to in paragraph 10.2.6 of GC10.2, Canada shall pay the Contractor out of the monies referred to in paragraph 10.2.1 of GC10.2 so far as they will thereunto extend.
10.2.8
Subject to paragraph 10.2.7 of GC10.2, payment by Canada pursuant to paragraph 10.2.7 of GC10.2 shall be made in accordance with the Contract but the amount of each payment shall be 100% of the amount claimed notwithstanding paragraphs 5.4.3.1 and 5.4.3.2 of GC5.4, "Progress Payment".
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(R2012-03) Page 1 of 1
Bid Bond
Bond No.: Amount: $ KNOW ALL PERSONS BY THESE PRESENTS, that as Principal, hereinafter called the Principal, and as Surety, hereinafter called the Surety, are, subject to the conditions hereinafter contained, held and firmly bound unto DEFENCE CONSTRUCTION (1951) LIMITED as Obligee, hereinafter called the Crown, in the amount of dollars ($ ), lawful money of Canada, for the payment of which sum, well and truly to be made, the Principal and the Surety bind themselves, their heirs, executors, administrators, successors and assigns, jointly and severally, firmly by these presents. SIGNED AND SEALED this day of WHEREAS, the Principal has submitted a written tender to the Crown, dated the day of , 20 , for
, 20
.
. NOW, THEREFORE, THE CONDITIONS OF THIS OBLIGATION are such that if: (a)
the Principal, should his tender be accepted within the period specified by the Crown, or, if no period be specified, within thirty (30) days after closing date of the tender, does execute within a period specified by the Crown, or, if no period be specified therein, within fourteen (14) days after the prescribed forms are presented to him for signature, execute such further contractual documents, if any, as may be required by the terms of the tender as accepted, and does furnish a Performance Bond and a Labour and Material Payment Bond, each in the amount of 50% of the Contract price and satisfactory to the Crown, or other security acceptable to the Crown, or
(b)
the Principal does pay to the Crown the difference between the amount of the Principal's tender and the amount of the Contract entered into by the Crown for the work, supplies and services which were specified in the said tender, if the latter amount be in excess of the former,
then this obligation shall be void; otherwise it shall remain in full force and effect. PROVIDED, HOWEVER, that the Surety and the Principal shall not be liable to the Crown for an amount greater than the amount specified in this Bond. PROVIDED FURTHER that the Surety shall not be subject to any suit or action unless such suit or action is instituted and process therefore served upon the Surety at its Head Office in Canada, within twelve (12) months from the date of this Bond. IN TESTIMONY WHEREOF, the Principal has hereto set its hand and affixed its seal, and the Surety has caused these presents to be sealed with its corporate seal duly attested by the signature of its authorized signing authority, the day and year first above written. SIGNED, SEALED AND DELIVERED in the presence of:
Principal
Witness
Surety
Note: Affix Corporate seal if applicable.
(R2012-03) Page 1 of 2
Labour and Material Payment Bond
Bond No.: Amount: $ KNOW ALL PERSONS BY THESE PRESENTS, that as Principal, hereinafter called the Principal, and as Surety, hereinafter called the Surety, are, subject to the conditions hereinafter contained, held and firmly bound unto DEFENCE CONSTRUCTION (1951) LIMITED as Obligee, hereinafter called the Crown, in the amount of dollars ($ ), lawful money of Canada, for the payment of which sum, well and truly to be made, the Principal and the Surety bind themselves, their heirs, executors, administrators, successors and assigns, jointly and severally, firmly by these presents. SIGNED AND SEALED this day of WHEREAS, the Principal has entered into a Contract with the Crown, dated the day of , 20 , for
, 20
.
which Contract is by reference made a part hereof, and is hereinafter referred to as the Contract. NOW, THEREFORE, THE CONDITIONS OF THIS OBLIGATION are such that, if payment is promptly made to all Claimants who have performed labour or services or supplied material in connection with the Contract and any and all duly authorized modifications and extensions of the Contract that may hereafter be made, notice of which modifications and extensions to the Surety being hereby waived, then this obligation shall be void, otherwise it shall remain in full force and effect, subject, however, to the following conditions: (1)
For the purpose of this Bond, a Claimant is defined as one having a direct contract with the Principal or any Subcontractor of the Principal for labour, material or both, used or reasonably required for use in the performance of the Contract, labour and material being construed to include that part of water, gas, power, light, heat, oil, gasoline, telephone services or rental of equipment (but excluding rental of equipment where the rent pursuant to an agreement is to be applied towards the purchase price thereof) directly applicable to the Contract.
(2)
For the purpose of this Bond, no payment is required to be made in respect of a claim for payment for labour or services performed or material supplied in connection with the Contract that represents a capital expenditure, overhead or general administration costs incurred by the Principal during the currency or in respect of the Contract.
(3)
The Principal and Surety hereby jointly and severally agree with the Crown that if any Claimant has not been paid as provided for under the terms of his contract with the Principal or a Subcontractor of the Principal before the expiration of a period of ninety (90) days after the date on which the last of such Claimant's labour or service was done or performed or materials were supplied by such Claimant, the Crown may sue on this Bond, have the right to prosecute the suit to final judgement for such sum or sums as may be due and have execution thereon; and such right of the Crown is assigned by virtue of Part VIII of the Financial Administration Act to such Claimant.
(4)
For the purpose of this Bond the liability of the Surety and the Principal to make payment to any claimant not having a contract directly with the Principal shall be limited to that amount which the Principal would have been obliged to pay to such claimant had the provisions of the applicable provincial or territorial legislation on lien or privileges been applicable to the work. A claimant need not comply with provisions of such legislation setting out steps by way of notice, registration or otherwise as might have been necessary to preserve or perfect any claim for lien or privilege which the claimant might have had. Any such claimant shall be entitled to pursue a claim and to recover judgement hereunder subject to the terms and notification provisions of the Bond.
(5)
Any material change in the Contract between the Principal and the Crown shall not prejudice the rights or interest of any claimant under this Bond who is not instrumental in bringing about or has not caused such change.
Labour and Material Payment Bond (6)
(R2012-03) Page 2 of 2
No suit or action shall be commenced hereunder by any Claimant: (a)
Unless such Claimant shall have given written notice within the time limits hereinafter set forth to the Principal and the Surety above named, stating with substantial accuracy the amount claimed. Such notice shall be served by mailing the same by registered mail to the Principal and the Surety at any place where an office is regularly maintained for the transaction of business by such persons or served in any manner in which legal process may be served in the Province or other part of Canada in which the subject matter of the Contract is located. Such notice shall be given (i)
in respect of any claim for the amount or any portion thereof required to be held back from the Claimant by the Principal or by the Subcontractor of the Principal under either the terms of the Claimant's Contract with the Principal or the Claimant's Contract with the Subcontractor of the Principal within one hundred and twenty (120) days after such Claimant should have been paid in full under this Contract;
(ii)
in respect of any claim other than for the holdback or portion thereof referred to above within one hundred and twenty (120) days after the date upon which such Claimant did or performed the last of the service, work or labour or furnished the last of the materials for which such claim is made under the Claimant's Contract with the Principal or a Subcontractor of the Principal;
(b)
After the expiration of one (1) year following the date on which the Principal ceased work on the said Contract, including work performed under the guarantees provided in the Contract;
(c)
Other than in a court of competent jurisdiction in the province or district of Canada in which the subject matter of the Contract or any part thereof is situated and not elsewhere, and the parties hereto hereby agree to submit to the jurisdiction of such court.
(7)
The amount of this Bond shall be reduced by and to the extent of any payment or payments made in good faith hereunder.
(8)
The Surety shall not be entitled to claim any moneys relating to the Contract and the liability of the Surety under this Bond shall remain unchanged and, without restricting the generality of the foregoing, the Surety shall pay all valid claims of Claimants under this Bond before any moneys relating to the Contract held by the Crown are paid to the Surety by the Crown.
(9)
The Surety shall not be liable for a greater sum than the amount specified in this Bond.
IN TESTIMONY WHEREOF, the Principal has hereto set its hand and affixed its seal, and the Surety has caused these presents to be sealed with its corporate seal duly attested by the signature of its authorized signing authority, the day and year first above written. SIGNED, SEALED AND DELIVERED in the presence of:
Principal
Witness
Surety
Note: Affix Corporate seal if applicable.
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Performance Bond
Bond No.: Amount: $ KNOW ALL PERSONS BY THESE PRESENTS, that as Principal, hereinafter called the Principal, and as Surety, hereinafter called the Surety, are, subject to the conditions hereinafter contained, held and firmly bound unto DEFENCE CONSTRUCTION (1951) LIMITED as Obligee, hereinafter called the Crown, in the amount of dollars ($ ), lawful money of Canada, for the payment of which sum, well and truly to be made, the Principal and the Surety bind themselves, their heirs, executors, administrators, successors and assigns, jointly and severally, firmly by these presents. SIGNED AND SEALED this day of WHEREAS, the Principal has entered into a Contract with the Crown, dated the day of , 20 , for
, 20
.
which Contract is by reference made a part hereof, and is hereinafter referred to as the Contract. NOW, THEREFORE, THE CONDITIONS OF THIS OBLIGATION are such that if the Principal shall well and faithfully observe and perform all the obligations on the part of the Principal to be observed and performed in connection with the Contract, then this obligation shall be void, otherwise it shall remain in full force and effect, subject, however, to the following conditions: (1)
Whenever the Principal shall be, and declared by the Crown to be, in default under the Contract, the Surety shall (a)
If the work is not taken out of the Principal's hands, remedy the default of the Principal,
(b)
if the work is taken out of the Principal's hands, and the Crown directs the Surety to undertake the completion of the work, complete the work in accordance with the Contract provided that if a contract is entered into for the completion of the work, (i)
it shall be between the Surety and the completing contractor, and
(ii)
the selection of such completing contractor shall be subject to the approval of the Crown,
(c)
if the work is taken out of the Principal's hands and the Crown, after reasonable notice to the Surety, does not direct the Surety to undertake the completion of the work, assume the financial responsibility for the cost of completion in excess of the moneys available to the Crown under the Contract,
(d)
be liable for and pay all excess costs of completion of the Contract, and
(e)
not be entitled to any Contract moneys earned by the Principal, up to the date of his default on the Contract and any holdbacks relating to such earned Contract moneys held by the Crown, and the liability of the Surety under this Bond shall remain unchanged provided, however, and without restricting the generality of the foregoing, upon the completion of the Contract to the satisfaction of the Crown, any Contract moneys earned by the Principal or holdbacks related thereto held by the Crown may be paid to the Surety by the Crown.
(2)
The Surety shall not be liable for a greater sum than the amount specified in this Bond.
(3)
No suit or action shall be instituted by the Crown herein against the Surety pursuant to these presents after the expiration of two (2) years from the date on which final payment under the Contract is payable.
Performance Bond
(R2012-03) Page 2 of 2
IN TESTIMONY WHEREOF, the Principal has hereto set its hand and affixed its seal, and the Surety has caused these presents to be sealed with its corporate seal duly attested by the signature of its authorized signing authority, the day and year first above written. SIGNED, SEALED AND DELIVERED in the presence of:
Principal
Witness
Surety
Note: Affix Corporate seal if applicable.
DCL 243 (R2012-03)
INSURANCE CONDITIONS Item
Heading
Page
1
INDEMNIFICATION ........................................................................................................... 2
2
INSURED ........................................................................................................................... 2
3
PERIOD OF INSURANCE.................................................................................................. 2
4
PROOF OF INSURANCE................................................................................................... 2
5
NOTIFICATION .................................................................................................................. 2
6
PAYMENT OF DEDUCTIBLE............................................................................................. 2
7
COMMERCIAL GENERAL LIABILITY ................................................................................ 3
8
BUILDERS RISK – ALL RISKS OR INSTALLATION FLOATER – ALL RISKS ................... 4
Page 1 of 4
DCL 243 (R2012-03)
INSURANCE CONDITIONS Except as otherwise directed by Amendment to the Tender Documents, the Contractor shall, at the Contractor's expense, maintain all insurance required of these Insurance Conditions. 1
INDEMNIFICATION 1.1
2
INSURED 2.1
3
Each insurance policy shall insure the Contractor, and shall include as an Additional Insured, Defence Construction (1951) Limited.
PERIOD OF INSURANCE 3.1
4
The insurance coverage required by the provisions of these Insurance Conditions shall in no way limit the Contractor's obligations under the General Conditions of the contract. Any additional coverage the Contractor may deem necessary to fulfill the Contractor's obligations under the aforesaid General Conditions shall be at the Contractor's own discretion and expense.
Unless otherwise directed in writing by the DCC Representative, the policies required hereunder shall be effective from the date of contract award and shall be maintained until the day of issue of the DCC Representative's Final Certificate of Completion.
PROOF OF INSURANCE 4.1 Immediately following notification of contract award and preceding the start of any onsite work, the Contractor shall have the Contractor's insurance broker or agency provide written confirmation (electronic transmission) as directed by the DCC Representative. 4.2
Within thirty (30) days after acceptance of the Contractor's tender, the Contractor is required to deposit with the DCC Representative a Certificate of Insurance Form DCL 232 of all contracts of insurance maintained by the Contractor pursuant to the requirements of these Insurance Conditions.
4.3
The Certificate of Insurance noted in 4.2 shall disclose all warranties, endorsements or exclusions that deviate substantially from standard IBC 2100, 4042 and 4047 forms.
Note that the Certificate of Insurance must be completed by the Insurer, not the Broker. 5
NOTIFICATION 5.1
6
Each insurance policy shall contain a provision that thirty (30) days prior written notice shall be given by the Insurer to Defence Construction (1951) Limited, as additional insured, in the event of any material change in, cancellation of, expiration of coverage, or amendment restricting coverage specific to this contract.
PAYMENT OF DEDUCTIBLE 6.1
The amount of monies up to the deductible amount made in satisfaction of a claim shall be borne by the Contractor.
Page 2 of 4
DCL 243 (R2012-03)
INSURANCE CONDITIONS 7
COMMERCIAL GENERAL LIABILITY 7.1
The policy shall be written on a form that does not deviate substantially from IBC 2100, the Commercial General Liability Policy.
7.2
This policy shall provide for limits of liability of not less than $5,000,000 inclusive, for Bodily Injury and Property Damage for any one occurrence or series of occurrences arising out of one cause and not less than $5,000,000 for personal injury.
7.3
The policy shall include but not necessarily be limited to the following coverages: 7.3.1 All premises, property and operations necessary or incidental to the performance of this contract. 7.3.2 Personal Injury. 7.3.3 Bodily Injury and Property Damage on an "occurrence" basis. 7.3.4 “Broad Form" Property Damage including the loss of use of property. 7.3.5 Removal or weakening of support of any property, building or land whether such support be natural or otherwise. 7.3.6 Elevator liability, including escalators, hoists, and similar devices. 7.3.7 Contingent Employer's Liability. 7.3.8 Owner's and Contractor's Protective Liabilities. 7.3.9 Blanket Contractual Liability. 7.3.10 Completed Operations and Products Liability. 7.3.11 Cross Liability – The insurance as is afforded by this policy shall apply in respect to any claim or action brought against any one Insured by any other Insured. The coverage shall apply in the same manner and to the same extent as though a separate policy had been issued to each Insured. The inclusion herein of more than one Insured shall not operate to increase the limit of the Insurer's Liability.
7.4
The policy shall be endorsed to include the following exposures or hazards if the work is subject thereto: 7.4.1 blasting 7.4.2 pile driving and caisson work 7.4.3 underpinning 7.4.4 risks associated with the activities of the Contractor on an active airport 7.4.5 demolition 7.4.6 marine risks including piers, wharves and docks 7.4.7 radioactive contamination resulting from the use of commercial isotopes
7.5
The insurance shall continue for a period of at least one year beyond the date of the DCC Representative's Final Certificate of Completion for the Completed Operations Hazard.
7.6
The policy shall be issued with a deductible amount of not more than $10,000.00 per occurrence.
Page 3 of 4
DCL 243 (R2012-03)
INSURANCE CONDITIONS 8
BUILDERS RISK – ALL RISKS OR INSTALLATION FLOATER – ALL RISKS 8.1
The policy shall be written to insure the work on an "All Risks" basis granting coverage that does not deviate substantially from IBC Forms 4042 and 4047, as amended from time to time.
8.2
The policy shall provide that the proceeds thereof are payable to Defence Construction (1951) Limited or as Defence Construction (1951) Limited may direct.
8.3
The Contractor shall do such things and execute such documents as are necessary to effect payment of the proceeds.
8.4
The amount of insurance shall not be less than the sum of the contract value plus the declared value (if any) set forth in the contract documents of all material and equipment supplied by Canada at the site of the project to be incorporated into and to form part of the finished work.
8.5
The policy shall be issued with a deductible amount of not more than $10,000.00.
8.6
The policy shall contain a provision whereby the Insurer grants permission of the continuing use and occupancy of the premises (which are the subject of the work under this contract) for the usual purposes, necessary or incidental to such premises.
Page 4 of 4
DCL 232 (R2012-03)
DEFENCE CONSTRUCTION (1951) LIMITED INSURER'S CERTIFICATE OF INSURANCE (To be signed by Insurer (not broker) and delivered to Defence Construction (1951) Limited within thirty (30) days following acceptance of Tender)
CONTRACT Description of Work
Contract No.
Award Date
Location
INSURER Name Address
BROKER Name Address
INSURED Name of Contractor Address
ADDITIONAL INSURED Canada as represented by Defence Construction (1951) Limited Address This document certifies that the following policies of insurance are at present in force covering all operations of the Insured, in connection with the contract made between the Insured and Defence Construction (1951) Limited and in accordance with the Insurance Conditions. Policy Type
Number
Inception Date mm/dd/yyyy
Expiry Date mm/dd/yyyy
Limits of Liability
Deductible
Commercial General Liability Builders' Risk "All Risks" Installation Floater "All Risks"
Warranties, endorsements, exclusions:(List only those that deviate substantially from standard IBC 2100, 4042 and 4047 forms)
The Insurer agrees to notify Defence Construction (1951) Limited in writing thirty (30) days prior to any material change in, cancellation of, or amendment restricting coverage specific to this contract. Name of Insurer's Officer or Authorized Employee
Signature
Date (mm/dd/yyyy) Telephone Number
Issuance of this Certificate shall not limit or restrict the right of Defence Construction (1951) Limited to request at any time duplicate certified copies of said Insurance policies.
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DCL 242 (R2015-11)
“REQUEST FOR ACCEPTANCE” OF ALTERNATIVE MATERIALS APPLICANT:
PROJECT: DCC PROJECT NUMBER:
ADDRESS:
DND JOB NUMBER: DND PF NUMBER: DESCRIPTION:
E-MAIL ADDRESS: FAX NO.: TELEPHONE NO.:
LOCATION:
DATE: TENDER CLOSING DATE: List below items being offered. Give manufacturers Name, Model, Catalogue number, Type, etc. (Detailed description and Specifications to be attached as "Supporting Data")
CONTRACT AWARD DATE: Contract Specification No.; Reference Section No.; Paragraph No. Indicate Contract Drawing No. if applicable.
List below items shown in the contract specifications. One reference for each item.
Design Authority "A" = Accepted "R" = Rejected
“A”
“R”
REVIEWER: Date Request Received:
Date Review Received:
Review Endorsed By:
REVIEWER’S COMMENTS: (in case of rejection or of cost or time implication)
DESIGN AUTHORITY: Date Request Received:
Date Review Received:
Review Endorsed By:
DCC OFFICE: Date Request Received:
DCC Reference Number: (Project No. / Contract No.)
Date Review Received:
Acceptance / Rejection Issued By: (See Page 2 for Instructions and Conditions)
Page 1 of 2
DCL 242 (R2015-11)
“REQUEST FOR ACCEPTANCE” OF ALTERNATIVE MATERIALS INSTRUCTIONS AND CONDITIONS 1.
DEFINITIONS Acceptable materials or equipment are those defined in the contract documents. Applicants are all manufacturers, suppliers or contractors interested in seeking acceptance of alternative material or equipment. Reviewer is the designer who specified the acceptable material or equipment in the contract documents.
2.
REQUEST FOR ACCEPTANCE Applicants MUST submit all Requests for Acceptance on the Defence Construction Canada form, which is on page 1 of this document. Requests for Acceptance Prior to Tender Closing The DCC Contracting Authority must receive a Request for Acceptance prior to tender closing at least ten (10) working days prior to the tender closing date. If the alternative material or equipment is accepted for the purposes of the tender then all tenderers will be advised with an amendment to the tender documents. Requests submitted too late to permit a review and subsequent issue of an amendment will be returned to the applicant. Requests for Acceptance after Contract Award A Request for Acceptance after contract award will ONLY be accepted from the CONTRACTOR and be considered if the specified material or equipment is no longer being manufactured or available in sufficient time to respect the contract schedule. The DCC Representative's decision regarding the acceptability of the alternative material or equipment and the amount of an associated credit will be final. The Request for Acceptance for the alternative material or equipment must be accompanied by an undertaking that its use will not adversely affect the completion date and that if its use results in consequential additional costs they will be borne by the Contractor.
3.
PROCEDURE Items offered as acceptable alternatives must be described in short and precise terms. Complete and up-to-date supporting data for each product or equipment offered must accompany each Request for Acceptance. This supporting data must include all pertinent test reports, performance charts, design calculations, detailed drawings or detailed manufacturer's specifications. Test reports from either independent laboratories or by the manufacturer's own test facilities will be accepted. Acceptability will be determined by the review of the submitted material. All deviations from the contract specifications or drawings in respect to the design, function, dimensions, composition or method of manufacture applying to material or equipment being offered for "acceptance" must be fully described. Deviations will only be permitted if noted in the amendment.
4.
CONDITIONS OF ACCEPTANCE Acceptance of alternative materials or equipment by the reviewer shall not relieve the Contractor from respecting all existing stipulations noted in the contract documents or accepting all consequential additional costs which may result from the use of the accepted material or equipment, whether they are apparent or not at the time of acceptance.
5.
DISTRIBUTION The Request for Acceptance form and all pertinent, technical supporting data must be distributed to the DCC Contracting Authority.
6.
INQUIRIES Inquiries concerning the Request of Acceptance process should be addressed to the DCC Contracting Authority listed on the MERX advertisement.
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DCL 80 (R2016-05)
CONTRACTOR PERFORMANCE EVALUATION REPORT FORM (CPERF) Refer to DCL81 for Guidelines Contract No.: Description of work: Contractor’s Business Name: Contractor’s Business Address: CONTRACT COORDINATOR Name: Telephone No.: ( ) - ext.
Project No.:
Client Reference No.:
Contractor’s Site Superintendent:
CONTRACT INFORMATION Contract Award Amount:
Final Amount:
Contract Award Date:
Contract Completion Date:
E-mail Address:
Original Completion Date:
Interim Certificate Date:
The following criteria are to be assessed by considering, at minimum, the considerations listed in Annex A. ADMINISTRATION / CONTRACT MANAGEMENT
Final Certificate Date:
No. of Change Orders:
CATEGORY Unacceptable Not Satisfactory Satisfactory Superior
SCALE
Unacceptable Not Satisfactory Satisfactory Superior
0-5 6-10 11-16 17-20
Unacceptable Not Satisfactory Satisfactory Superior
0-5 6-10 11-16 17-20
Unacceptable Not Satisfactory Satisfactory Superior
0-5 6-10 11-16 17-20
Fax No.: ( ) -
Comments:
POINTS
0-5 6-10 11-16 17-20
EXECUTION / PROJECT MANAGEMENT Comments:
QUALITY OF WORKMANSHIP Comments:
TIMELINESS Comments:
HEALTH AND SAFETY Comments:
Unacceptable Not Satisfactory Satisfactory Superior
0-5 6-10 11-16 17-20 Total Points: Total Percentage Rating: Type of CPERF Report:
General Comments:
DCC Evaluator Name: DCC Authorization Name:
Title:
Signature:
Date: (yyyy/mm/dd)
Title:
Signature:
Date:
Page 1 of 2
(yyyy/mm/dd)
0 0% Final
ANNEX A – MINIMUM CRITERIA CONSIDERATIONS ADMINISTRATION / CONTRACT MANAGEMENT Did the contractor - in the time frame specified, provide its contract security and Insurance Certificate fully executed where applicable - submit an appropriate Cost Breakdown in a timely manner - provide a comprehensive work plan and adhere to its milestones - submit progress claims in the correct format, accurately represent the work successfully completed, and material delivered to the site but not yet installed, for each payment period - submit a notarized Statutory Declaration correctly completed with each progress claim - submit an updated Scheduled if so specified - maintain a complete set of project records on site, including approved shop drawings, change orders, as-builts and O&M manuals - provide shop drawings promptly and were they of sufficient detail - promptly provide reasonable quotations with appropriate detail, for changes to the original scope of work - provide O&M manuals prior to commencement of commissioning activities - provide reasonable schedule updates in accordance with the contract, or requested by DCC during the course of the project, including deficiency repair phase - provide all monthly, quarterly and annual reports as well as all other required deliverable in a timely manner - FM specific
EXECUTION / PROJECT MANAGEMENT Did the contractor - promptly commence the work - employ a knowledgeable site superintendent - order material promptly and in such a way as to expedite the progress of the work - effectively manage and complete all Division 1 work site activities - effectively coordinate and manage the work of its subcontractors - notify the DCC Representative of all its subcontracting activities - cooperate with other contractors sent onto the site of the work - remove a superintendent or unsuitable worker when requested by the DCC Representative to do so - establish effective quality control procedures - interpret the contract documents accurately - cooperate when issued directions by the DCC Representative - provide information promptly when requested to do so - require additional input from DCC staff above that which is normal for a project of similar size and nature - to the best of your knowledge, pay subcontractors and suppliers in a timely fashion - effectively protect the work - promptly correct defective work as the project progressed - satisfactorily clean the work site periodically and at the completion of the project - provide help desk capability that effectively receives and records customer calls/request and follows up on responsive actions - FM specific - properly manage all job activities including scheduled maintenance, demand maintenance (maintenance AWRs) and project requests (project AWRs) - FM specific - promptly initiate and effectively manage the procurement of AWRs - FM specific - effectively manage the Contractor and Consultant Source Lists/ pertaining to AWRs - FM specific - provided effective and viable solutions/recommendations to demand and projects AWRs, gain share initiatives and expenditure planning - FM specific
QUALITY OF WORKMANSHIP The quality of services as well as the quality of the materials and equipment incorporated in the work must meet the requirements set out in the Statement of Work (SOW) and plans and specifications. The Evaluator is to consider how the workmanship compares with : - The norms in the area in which the work was carried out - The contractor’s compliance with any quality provisions outlined in the Statement of Work (SOW) and drawings and specification - The quality of workmanship provided by other contractors on similar projects in the same or similar facility(ies)
TIMELINESS The Evaluator is to consider: - whether the contractor made an effective effort to meet the scheduled completion date as stipulated in the contract - whether the contractor made an effective effort to clean up deficiencies and damages caused by the work, in a reasonable time - whether it is necessary to recommend assessment and damages for late completion - the impact the completion date has on the Client’s operational requirements - whether the contractor effectively managed the site during a suspension or termination of the work to mitigate any additional costs to DCC - whether the contractor complied with all warranty provisions up to the date of the CPERF - whether the contractor dealt promptly with any claims from creditors - whether the contractor expedited, and co-operated in, the settlement of all disputes - whether the contractor made an effort to meet the service response times established in the contract - FM specific For the purpose of evaluating the contractor’s time performance, consideration must be given to conditions beyond the contractor’s control, including DCC/ Consultant / Client Performance, e.g.: - availability of, and access to, the site - changes in soil or site conditions - weather extremes - strikes - material / equipment supply problems originating from manufacturers / suppliers - quality of plans and specifications - major change(s) in scope - cumulative effect of changes - was DCC able to meet its obligations? - timely decisions, clarifications, approvals - delays caused by other contractors in the same facility
HEALTH AND SAFETY The effectiveness to which the contractor managed and administered the occupational health and safety provisions as stipulated in the contract documents and those required by provincial/territorial legislation or those that would otherwise be applicable to the site of the work. Consideration should be given to: Did the contractor - provide DCC with a copy of its health and safety program prior to commencement of the work - provide DCC with a copy of its site specific hazardous assessment prior to commencement of the work - apply for and obtain the provincial/territorial Notice of Project prior to commencement of the work - apply for and obtain the Building Permit prior to commencement of the work - apply for and obtain all applicable permits, including but not limited to: Hot Works, Confined Spaces, Roof Access, Lock Out/Tag Out - provide a competent superintendent who - is qualified in health and safety matters because of her/his knowledge, training and experience - is familiar with the O, H&S Act and its Regulations that apply to the site of the work - remedies any potential or actual danger of health and safety to those employed at the work site - respond in a timely manner to any non-compliance safety issues noted by DCC or a representative of the authority having jurisdiction - provide on-site personnel’s daily/weekly health and safety inspection reports as per the contract and/or provincial/territorial requirements - implement its safety program in a proactive manner - provide an effective emergency response capability at all building and real property assets under contract - FM specific
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DCL81 (R2016-05)
PERFORMANCE EVALUATION GUIDELINES 1
INTRODUCTION 1.1
Contracts put in place by DCC include measurable performance standards and requirements.
1.2
This document describes the performance evaluation review process that applies to all DCC contracts.
1.3
The performance evaluation has several benefits:
1.3.1
It provides all parties with a common understanding of the standards applied and method used to measure performance on DCC contracts.
1.3.2
It supports the monitoring and communication of performance throughout the contract in a fair and consistent manner.
1.3.3 It enables DCC to acknowledge good performers and to take appropriate actions with firms who are not meeting the requirements of a contract. 2
3
PERFORMANCE EVALUATION PROCESS 2.1
Contractor/Consultant Performance Evaluation Report Forms (CPERF) have been developed to support the various types of DCC contracts. The applicable CPERF is referenced within the contract documents.
2.2
Prior to Completion, “Interim” CPERF(s) may be completed by DCC to communicate and document performance issues. A “Final” CPERF will be completed and issued following Completion of the contract or when work is removed from the firm as a result of a default.
2.3
On design consultant contracts, an Interim CPERF will be issued at the end of the Design Phase, followed by a Final CPERF when Construction Phase Services are completed.
2.4
Each category of performance is evaluated with consideration to the minimum criteria listed in Annex A to the CPERF. Specific comments will be provided to support all scores that fall outside the 11 to 16 scale, while general comments are provided in support of scores falling within the 11 to 16 scale.
PERFORMANCE EVALUATION CRITERIA 3.1
The performance evaluation criteria are summarized in Table 1 below. The points allocated for each category are noted on the CPERF and are used to establish an overall percentage score.
Table 1-Performance Evaluation Criteria
4
Contractor (CN, SC & FM)
Administration / Contract Management
Execution / Project Management
Quality of Workmanship
Timeliness
Health & Safety
Consultant (KN)
Administration / Management
Cost Control
Quality of Work / Design/Study
Time
Quality of TPS / CPS / Quality of Result
ACTIONS RESULTING FROM AN “Unacceptable” SCORE OR FAILING CPERF 4.1
4.2
Bidding privileges will be suspended if:
4.1.1
A Final CPERF score is less than 30%; or
4.1.2
A point score of 5 or less is received in any single category on a Final CPERF.
Final CPERFs with a score of less than 51% overall will result in the issuance of:
Page 1 of 2
DCL81 (R2016-05)
PERFORMANCE EVALUATION GUIDELINES
4.3
5
4.2.1
A warning indicating that if another unsatisfactory rating is received it will result in a suspension of bidding privileges; or
4.2.2
A suspension of bidding privileges (for a 2nd score less than 51%).
Suspension of bidding privileges will be conveyed to the suspended firm as a formal notice in writing from a DCC Senior Manager. The “Suspension” letter will include specific reference to the categories of poor performance, the duration of the suspension and the requirements for reinstatement. Suspensions may be limited to a specific timeframe or may be indefinite. For bidding privileges to be reinstated the timeframe of the suspension must have expired (if applicable) and the firm must demonstrate that they have met the requirements for reinstatement.
APPEAL PROCESS 5.1
While an appeal of a “Suspension” letter is under review, the suspension of bidding / opportunity privileges is upheld.
5.2
The appeal must be submitted to the National Service Line Leader, Contract Management in writing, within ten (10) business days of receiving an unsatisfactory CPERF.
5.3
The National Service Line Leader, Contract Management will review the appeal and may request additional information from the firm if required. Following review, the National Service Line Leader will advise the firm in writing if any adjustments to the CPERF will be made. No further appeals to adjust the CPERF will be considered.
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(R2017-01)
DCC’s PROCUREMENT CODE OF CONDUCT TABLE OF CONTENTS 1.
CONTEXT AND PURPOSE ............................................................................................ 2
2.
THE PROCUREMENT PROCESS: OPENNESS, FAIRNESS AND TRANSPARENCY .. 2
3.
APPLICATION................................................................................................................. 2
4.
RESPONSIBILITIES OF DCC EMPLOYEES .................................................................. 3
5.
RESPONSIBILITIES OF SUPPLIERS ............................................................................. 3
6.
PERIOD OF INELIGIBILITY OR SUSPENSION .............................................................. 4
7.
PUBLIC INTEREST EXCEPTION ................................................................................... 4
8.
TREATMENT OF EXISTING CONTRACTS AFTER CONVICTION ................................ 4
9.
SUBCONTRACTORS ..................................................................................................... 4
10.
REMEDIES ..................................................................................................................... 5
11.
ADMINISTRATION .......................................................................................................... 5
12.
PUBLIC LIST ................................................................................................................... 5
13.
KEY CONTACT ............................................................................................................... 5
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1.
CONTEXT AND PURPOSE
1.1
Defence Construction Canada (DCC) is a Crown corporation that was created pursuant to the Defence Production Act for the specific purpose of delivering defence infrastructure projects for which it serves as the contracting authority on behalf of the Department of National Defence, the Canadian Armed Forces and the Communications Security Establishment.
1.2
DCC is committed to open, fair and transparent procurement and real property transactions. A strong government-wide Integrity Regime has been put in place by Public Services and Procurement Canada (PSPC) to ensure that the Government does business with ethical suppliers in Canada and abroad. This regime helps to foster ethical business practices, ensure due process for suppliers and uphold the public trust in the procurement process.
1.3
DCC’s Procurement Code of Conduct (PCC) incorporates by reference PSPC’s Ineligibility and Suspension Policy and any directives issued further to the policy, which form part of the Integrity Regime. The policy sets out when and how a supplier may be declared ineligible or suspended from doing business with the government.
1.4
The PCC provides suppliers with a clear statement of expectations to ensure a basic understanding of their responsibilities during the procurement process as well as throughout the implementation of the work.
1.5
The PCC reflects the Ineligibility and Suspension Policy and is framed by the principles set out in the Financial Administration Act, the Criminal Code, the Competition Act and the Lobbying Act, as well as other relevant legislative, regulatory and policy instruments relating specifically to procurement.
1.6
By providing a single point of reference to key responsibilities, DCC is making the measures easier to find and understand in light of an overall commitment to the highest standards of ethical conduct. The PCC will be reviewed as necessary to ensure DCC continues to meet this objective.
2.
THE PROCUREMENT PROCESS: OPENNESS, FAIRNESS AND TRANSPARENCY
2.1
At DCC, fairness, openness and transparency are assured through compliance or alignment with relevant legislation, regulations, agreements, policies and guidelines, including the Financial Administration Act, the Government Contracts Regulations, the Public Servants Disclosure Protection Act, various Treasury Board of Canada Secretariat policies and Canada's international and domestic trade agreements, such as the World Trade Organization’s Agreement on Government Procurement, the North American Free Trade Agreement and the Agreement on Internal Trade. In addition, DCC's procurement activities are governed by land claims agreements with Canada's Aboriginal peoples.
2.2
In addition to the legal provisions, the tenets of fairness, openness and transparency are amplified in DCC’s procurement policies and procedures, including DCC’s Code of Business Conduct for employees.
3. 3.1
APPLICATION The PCC applies to suppliers who, in relation to the procurement of goods, services, real property or construction, have submitted, or may submit, an offer to contract or who have been awarded a contract by DCC. Suppliers are persons, which includes individuals, Page 2 of 5
(R2017-01)
organizations, bodies corporate, societies, companies, firms, partnerships, associations of persons, parent companies or subsidiaries, whether partly or wholly-owned, as well as directors, officers and key employees. 3.2
Further, a person is a supplier’s affiliate if, directly or indirectly, either one controls the other, a third party controls both, both are under common control or both are controlled by third parties that are affiliated with each other. Refer to the definitions of “affiliate” and “control” in the Ineligibility and Suspension Policy.
3.3
Specific classes of contracts are exempt from the application of the Ineligibility and Suspension Policy. Refer to the policy for more details.
4. 4.1
5.
RESPONSIBILITIES OF DCC EMPLOYEES DCC employees are committed to adhering to DCC’s Code of Business Conduct as well as the Treasury Board of Canada Secretariat’s Values and Ethics Code for the Public Sector. DCC’s Code of Business Conduct covers such issues as values and ethics, standards of conduct and conflict of interest. RESPONSIBILITIES OF SUPPLIERS
5.1
Suppliers must respond to DCC's bid solicitations in an honest, fair and comprehensive manner, accurately reflect their capacity to satisfy the requirements stipulated in the bid or contract documents, and submit bids and enter into contracts only if they will fulfill all obligations of the contract.
5.2
Suppliers are obliged to alert DCC of any factual errors that they discover in bid solicitations and of any changes affecting the list of names of directors or owners during the contract period.
5.3
Suppliers, potential suppliers and their affiliates are prohibited from: 5.3.1
directly or indirectly, paying or agreeing to pay a contingency fee to any individual for the solicitation, negotiation or obtaining of the contract if the payment of the fee would require the individual to file a return under section 5 of the Lobbying Act;
5.3.2
corruption, collusion, bid-rigging or any other anti-competitive activity under the Competition Act in the bidding process, real property transactions, the performance of work, the supply of goods or the rendering of services;
5.3.3
any activity that has resulted or could result in being convicted of an offence under any of the provisions listed in the Ineligibility and Suspension Policy.
5.4
Suppliers shall comply with applicable Government of Canada security and confidentiality requirements.
5.5
To help ensure that the entire procurement process conforms to the highest standards of ethical conduct, suppliers are required to avoid any action that would jeopardize the ability of DCC’s employees to respect their obligations under DCC’s Code of Business Conduct. While it is impossible to foresee every situation that could give rise to a real, perceived or potential conflict of interest, suppliers should, for example, not offer or give DCC employees gifts, hospitality or other benefits that may have a real or perceived influence on their objectivity in carrying out their official duties or that may place them under a real or perceived obligation to the donor.
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5.6
A supplier that is bidding on, or has been awarded, a contract must abide by the obligations contained in the PCC, which form part of the contract.
5.7
A supplier shall comply, to the satisfaction of PSPC, with the terms and conditions of an administrative agreement entered into with PSPC pursuant to the Ineligibility and Suspension Policy.
6. 6.1 7.
PERIOD OF INELIGIBILITY OR SUSPENSION The period of ineligibility or suspension for contract award for a supplier or potential supplier is determined pursuant to the Ineligibility and Suspension Policy. PUBLIC INTEREST EXCEPTION
7.1
The Public Interest Exception applies in circumstances where DCC determines that entering into a contract with an ineligible or suspended supplier is in the public interest.
7.2
The reasons for invoking a Public Interest Exception include, but are not limited to, the following: 7.2.1
no other supplier is capable of performing the contract;
7.2.2
there is an emergency;
7.2.3
national security is at issue;
7.2.4
the health and safety of the Canadian population is at issue; and
7.2.5
there is a risk of harm to the economy.
7.3
The exception is applied on a case-by-case basis by DCC.
7.4
When a Public Interest Exception is invoked, an administrative agreement between PSPC and the supplier is required.
8.
TREATMENT OF EXISTING CONTRACTS AFTER CONVICTION
8.1
If a supplier is convicted of an offence under any of the provisions listed in the Ineligibility and Suspension Policy during the performance of a contract, DCC retains the right to terminate the contract or real property agreement for default. Suppliers will be afforded an opportunity to show cause as to why the termination should not be exercised.
8.2
An administrative agreement between the supplier and PSPC will be required if a decision is taken to not terminate the contract or real property agreement. This will require third party monitoring of the terms of the agreement.
9.
SUBCONTRACTORS
9.1
A supplier cannot enter into a contract with an ineligible or suspended subcontractor. Refer to the process described in the Ineligibility and Suspension Policy to verify the status of prospective first-tier subcontractors.
9.2
Should a supplier require the services of an ineligible or suspended subcontractor, they will have to obtain the advance written approval of DCC.
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9.3
Any supplier that knowingly enters into a contract with an ineligible or suspended subcontractor without obtaining the advance written approval of DCC will be declared ineligible in accordance with the Ineligibility and Suspension Policy.
9.4
Suppliers must ensure that contracts with first-tier subcontractors include provisions to abide by the obligations contained in the PCC.
10. REMEDIES 10.1 Any disputes regarding the interpretation or application of the PCC should first be resolved using the dispute resolution clauses in the contracts. DCC will consider all alternative dispute resolution mechanisms that are appropriate to a situation, including facilitated negotiation, mediation and non-binding or binding arbitration, before considering litigation. 10.2 The Canadian International Trade Tribunal (CITT) has jurisdiction to conduct inquiries into complaints by potential suppliers concerning DCC procurements that are covered by trade agreements. Potential suppliers, who believe they may have been unfairly treated during the solicitation or evaluation of bids, or in the awarding of contracts subject to the trade agreements, may lodge a formal complaint with the CITT. The CITT, which is a court of record and has, as regards evidence and the enforcement of its orders, all powers of a superior court of record, may review all aspects of a procurement action up to and including contract award. 11. ADMINISTRATION 11.1 The Ineligibility and Suspension Policy, as it applies to DCC’s procurement activities, is administered jointly by DCC and PSPC pursuant to a Memorandum of Understanding, which governs the duties and responsibilities of each party. 12. PUBLIC LIST 12.1 PSPC produces and maintains a public Ineligibility and Suspension List. The list contains the names of suppliers, other than individuals, that were determined to be ineligible, or have been suspended, under the Integrity Regime. For information regarding ineligible or suspended individuals, inquiries must be made to the Registrar of Ineligibility and Suspension. 13. KEY CONTACT 13.1 Inquiries regarding the PCC may be made to: Alain Xatruch, Procurement Specialist. 13.2 Issues related to PCC compliance may be brought to the attention of President’s Office.
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